| INTERPRETATION
1. In these Conditions:-
“Buyer” means the person(s), firm or company who purchases the Goods from Terracast Ltd (“Terracast”);
“Contract” means any contract between Terracast and the Buyer for the sale and purchase of the Goods, incorporating these Conditions;
“Delivery Point” means the such place as Terracast shall expressly agree in writing;
“Goods” means any goods agreed in the Contract to be supplied to the Buyer by Terracast (including any part or parts of them);
1.1. In these Conditions:-
1.1.1. References to any statute or statutory provision shall, unless the context otherwise required, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, reenacted or replaced;
1.1.2. Headings will not affect the construction of these Conditions.
2. SELLER’S CONDITIONS OF SALE APPLY
2.1. These Conditions shall apply to and govern any Contract between Terracast and the Buyer to the exclusion of any other terms or conditions contained on or in any order form, letter, purchase order, specification, receipt, acknowledgement, or other document emanating from the Buyer. No variation of these Conditions shall be effective unless expressly agreed by Terracast in writing.
2.2. Each order for Goods by the Buyer from Terracast shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions. Any verbal orders placed by the Buyer shall be confirmed by the Buyer’s authorised representative in writing within 24 hours after the verbal order is made, No order placed by the Buyer shall be deemed to be accepted by Terracast until an acknowledgement of order is issued by Terracast.
2.3. The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate to the reasonable satisfaction of Terracast, and shall provide Terracast with any necessary information relating to the Goods or the Contract within a reasonable time to enable Terracast to perform its obligations under the Contract. The Buyer shall on request provide Terracast with full identification details for those persons authorised by the Buyer to contract on its behalf, and the monetary extent and any other extent of their authority to bind the Buyer. Any prepayment of an order by the customer will be deemed as an irrevocable agreement that these Conditions shall apply to and govern the Contract to which the prepayment relates, to the exclusion of any other terms or conditions.
2.4. No quotation given or other document issued by Terracast shall constitute an offer for sale nor any representation that the Goods referred to in the quotation shall be available for sale.
3. PRICES AND IMPORT RESPONSIBILITIES
3.1. All price quotations are calculated from costs available at the date of quotation and include packaging but exclude delivery, loading, unloading, carriage, insurance, and VAT, all of which are additionally payable unless otherwise specified in Terracast’s quotation. If there is an increase in such costs to Terracast before the date of dispatch, then Terracast may increase the price accordingly.
3.2. 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 obtaining any necessary licences or other requisite documents, and paying all applicable customs duties and taxes in respect of importation of the Goods into the country of destination and their resale therein, unless otherwise specified in Terracast’s quotation.
3.3. The Buyer shall provide Terracast with any information which is necessary in order to comply with all labelling, marketing and other applicable legal requirements in the country of destination, including but not limited to any documents required to comply with anyregulations that apply to the country of import..
4. DELIVERY
4.1. Unless otherwise agreed in writing the Buyer shall be bound to accept Goods ordered by him on being notified by Terracast that they have been delivered to the Delivery Point.
4.2. If the Buyer fails to take delivery at the time required by the Contract or to provide when required by Terracast any information or documents required by these Conditions, Terracast shall be entitled without prejudice to any other rights it may have to either treat the Contract as at an end and to resell the Goods, or to invoice the Buyer for the Goods whereupon payment in full shall become due forthwith and, in either case, to charge at rates giving an economic return for the handling and storage of Goods from the Invoice date to the eventual date of delivery to the Buyer or disposal elsewhere, as the case may be. The Buyer shall be liable to pay any premium in respect of the insurance of such Goods from the date on which it is notified that the Goods are ready for delivery.
4.3. If Goods are contracted to be delivered by instalments late delivery of one instalment shall not entitle the Buyer to reject any other instalment under the same Contract.
4.4. Any date of delivery given by Terracast to the Buyer shall be an estimate only and while Terracast will endeavour to comply with any such date it shall not be responsible for late delivery. Time of delivery shall not be of the essence of the Contract, nor shall it be capable of being made so by notice. Without prejudice to the generality of the foregoing Terracast shall not be liable for late delivery or failure to deliver through any cause which is beyond the control of Terracast.
4.5. If Terracast delivers to the Buyer a quantity of Goods of up to 10% more or less than that ordered by the Buyer, the Buyer shall not be entitled to reject the Goods or any of them by reason of the surplus or shortfall, and shall pay for such Goods at the pro rata rate for the Contract.
4.6. The quantity of any consignment of Goods as recorded by Terracast upon despatch from Terracast’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can prove otherwise to the satisfaction of Terracast.
4.7. Terracast shall not be liable for any non-delivery of Goods (even if caused by Terracast’s negligence) unless written notice is given to Terracast within five (5) days of the date when the Goods would in the ordinary course of events have been received.
4.8. Any liability of Terracast for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
5. RISK
5.1. All Goods shall be at the Buyer’s risk from the time of notification in accordance with Condition 4.1 above or (where no such notification is given) when delivery to Terracast or carrier takes place at the Delivery Point.
6. RETENTION OF TITLE
6.1. Goods shall remain the property of Terracast until payment of all sums due to Terracast from the Buyer in respect of the Contract, and on any other accounts whatsoever, have been received in full by Terracast in cleared funds.
6.2. Until the property in the Goods is vested in the Buyer, in accordance with Condition 6.1 above, the Buyer shall not pledge and shall store separately and mark the Goods so that they are readily identifiable as the property of Terracast and shall hold the goods on a fiduciary basis as agent for Terracast.
6.3. Until otherwise notified by Terracast pursuant to Condition 6.4 below, or until the happening of any of the events set out in Condition 6.5 below:-
6.4. The Buyer may use the Goods in the normal course of its business;
6.5. Terracast shall be entitled to serve notice on the Buyer indicating its intention to retake possession of its Goods and/or terminating the Buyer’s authority to use or sell the Goods under Condition 6.4 above if the Buyer is in breach of the payment terms under this Contract.
7. LIMITATION OF TERRACAST’S LIABILITY
7.1. The following provisions set out the entire financial liability of Terracast (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
7.1.1. any breach of these conditions;
7.1.2. any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
7.1.3. any representation, statement act or omission including negligence arising under or in connection with a Contract.
7.2. Nothing in these conditions excludes or limits the liability of Terracast for any matter which it would be illegal for Terracast to exclude or attempt to exclude its liability; or for fraud or fraudulent misrepresentation.
7.3. Subject to condition 7.2, Terracast’s total liability in contract, negligence or breach of statutory duty, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of a Contract shall be limited to the Contract price;
7.4. Terracast shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with a Contract.
7.5. Terracast shall not be bound by any warranty or representation given by or made on its behalf unless specifically stated in writing and expressly signed stating it is to be incorporated in the Contract.
8. PAYMENT
8.1. All sums due to Terracast in respect of a Contract shall be payable in the currency agreed by Terracast and shall be due to be paid in cleared funds on the date or dates specified in the Contract.
8.2. Time of payment shall be of the essence of the Contract. If the Buyer does not pay the whole sums due, on the due date, Terracast may:-
8.2.1. suspend delivery of Goods under all or any of the Contracts with the Buyer (in Terracast’s sole discretion); and/or require payment in advance for any Goods ordered by the Buyer; and/or
8.2.2. charge interest at the rate of 6% per annum over the base rate from time to time of the Lloyds TSB Bank on an overdue account from the day following that on which payment was due until payment by way of cleared funds has been received in full. Without prejudice to the foregoing provision, Terracast reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
8.3. No payment shall be deemed to have been received until Terracast has received cleared funds.
8.4. All payments payable to Terracast under a Contract shall become due immediately upon termination of the Contract despite any other provision.
8.5. The Buyer shall make all payments due under each Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by Terracast to the Buyer. Terracast shall be entitled to apply and appropriate any payment received from the Buyer to such of the Goods (or to any goods supplied under any other contact between Terracast and the Buyer) as Terracast may think fit (notwithstanding any purported application and appropriation by the Buyer).
9. RESCISSION AND CANCELLATION
9.1. Terracast shall have the option (without prejudice to any of its other rights against the Buyer) by notice in writing to the Buyer to rescind any Contract between Terracast and the Buyer or to suspend delivery (in each case without liability to the Buyer) in the following events:-
9.1.1. should any sum owing by the Buyer to Terracast be overdue whether under the same or any other Contract; or
9.1.2. should the Buyer be in breach of any term of the Contract or any other Contract with Terracast (including but not limited to Condition 3.3); or
9.1.3. should a receiver or manager is to be or has been appointed over the Buyer or if any encumbrance or creditor shall take possession of all or any part of its assets;
9.1.4. a petition to wind up or other process to liquidate the Buyer is to be or has been presented or issued or that a resolution to wind up the Buyer (save for the purposes of a bona fide reconstruction or amalgamation) has been tabled or passed;
9.1.5. the Buyer makes an arrangement with its creditors or to stop payment or cease or threaten to cease business or a major part thereof;
9.1.6. the Buyer resolving to go into administration or any court making an administration order in respect of the Buyer or an administrator being appointed or documents filed with the court for the appointment of an administrator or a notice of intention to appoint an administrator being given by another party or its directors or a qualifying floating charge holder
9.1.7. any enforcement action is taken upon or against any property of the Buyer;
9.1.8. the bankruptcy or sequestration of the Buyer or the inability of the Buyer to pay its debts;
9.1.9. Terracast reasonably apprehending that any of the above mentioned events is about to occur in relation to the Buyer and notifying the Buyer accordingly; or
9.1.10. anything analogous to any of the foregoing under the law of any jurisdiction occurring in relation to the Buyer..
9.2. If the Buyer wishes to cancel any Contract before it is performed, it must first obtain the express written consent of Terracast, who shall be entitled to charge a cancellation charge which will cover costs of all work carried out against written or verbal instructions received from buyer.
10. INSPECTION AND COMPLAINTS POLICY
10.1.On delivery of the Goods the Buyer shall inspect the Goods on receipt and notify within 5 working days of receipt, and any claim which is based on any defect in the number, quality or condition of the Goods or their failure to correspond with specification shall be notified to Terracast in full, within 10 working days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time being no more than 30 days after the defect or failure was discovered or ought reasonably to have been discovered. If delivery is not refused, and the Buyer does not notify Terracast accordingly, the Buyer shall not be entitled to reject the Goods and Terracast shall have no liability for such defect or failure, and the Buyer shall remain bound to have paid the price as if the Goods had been delivered in accordance with the Contract.
10.2.Where any claim in respect of the Goods which is based on any defect in the number, quality or condition of the Goods or their failure to meet specification is notified in writing to Terracast in accordance with these Conditions, Terracast shall be entitled to inspect the Goods in their alleged defective state and/or require the Buyer to send to Terracast at the Buyer’s expense photographic or other evidence of the alleged defective state of the Goods and/or require the Buyer to return at the Buyer’s expense samples of the Goods for inspection in the United Kingdom and then, if Terracast accepts the claim is valid, to repair or replace the Goods (or the part in question) free of charge or, at Terracast’s sole discretion, refund to the Buyer or allow the Buyer credit for the price of the Goods (or a proportionate part of the price), but Terracast shall have no further liability to the Buyer. Any Goods replaced shall belong to Terracast and shall be returned to Terracast by the Buyer at the Buyer’s expense.
10.3.Terracast shall have no liability whatsoever for any under-delivery, failure to deliver, damage or loss where it arises as a result or consequence (whether direct or indirect) of the actions or omissions of the Buyer, its employees, agents, carriers or sub-contractors.
11. QUALITY AND WARRANTIES
11.1.The quality, description and specification of the Goods shall be as set out in Terracast’s quotation, and/or any sample goods approved by the Buyer in accordance with the Contract.
11.2.Terracast may (entirely at Terracast’s discretion) assign to the Buyer, to the extent to which Terracast has the right to do so, the benefit of any express guarantee or warranty received by Terracast from the manufacturer or supplier of the Goods.
11.3.Where the Goods are required for a purpose other than the usual purpose for which such Goods are commonly supplied, then no condition or warranty of fitness for that unusual purpose is granted or shall be implied unless the Buyer has made known to Terracast in writing prior to conclusion of the Contract the exact purpose to which such Goods are intended to be put, and Terracast has expressly acknowledged in writing prior to or on conclusion of the Contract that such Goods shall be fit for such purpose.
11.4.Save as aforesaid no condition or warranty of satisfactory quality or fitness for purpose shall be implied
12. WAIVER
12.1.Failure or delay by Terracast in enforcing or partially enforcing any provision of a Contract shall not be construed as a waiver of any of its rights under that or any other Contract.
12.2.Any waiver by Terracast of any breach of, or any default under, any provision of a Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of that or any other Contract.
13. FORCE MAJEURE
13.1.Terracast reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Terracast including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials;
14. ASSIGNMENT
14.1.The Buyer shall not be entitled to assign any Contract or any part of any Contract without the express prior consent of Terracast.
14.2.Terracast shall be entitled to assign or sub-contact any Contract or any part of any Contract to any third party, and shall be entitled to perform any obligation under a Contract through its subsidiary, holding company or a subsidiary of such holding company.
15. SEPARATE REMEDIES
15.1.Each right or remedy of Terracast under a Contract is without prejudice to any other right or remedy of Terracast, whether under that Contract or not.
16. SEVERABILITY
16.1.If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
17. THIRD PARTY RIGHTS
17.1.The parties to this Contract to not intend that any term of a Contract will be enforceable by virtue of the jus quaesitum tertio or any statutory or other rule of law by any person that is not a party to it.
18. NOTICES
18.1.All notices between the Buyer and Terracast concerning this Contract must be in writing and delivered by hand or sent by prepaid first class post or sent by fax or email:-
18.1.1. (in case of communications to Terracast) to its registered office or such other address as shall be notified to the Buyer by Terracast in accordance with this Condition 18; or
18.1.2. (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to Terracast by the Buyer in accordance with this Condition 18.
18.2.Communications shall be deemed to have been received:-
18.2.1. if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
18.2.2. if delivered by hand, on the day of delivery;
18.2.3. if sent by fax or email on a working day prior to 4 p.m., at the time of transmission and otherwise on the next working day.
19. GOVERNING LAW AND JURISDICTION
19.1.The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law.
19.2.The parties submit to the exclusive jurisdiction of the English courts in relation to any dispute relating to, concerning, or arising under the Contract or its formation or validity,
19.3.Terracast at its option may commence proceedings in any other appropriate jurisdiction in respect of non-payment under the Contract.
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