Terms & Conditions - 2008

1. Interpretation

1.1 In these Conditions the following words will have the following meanings:-

“Buyer“ means the person(s) firm or Company who purchases the Goods from the Seller;
“Conditions” means these standard terms and conditions of sale;
“Contract” means the contract for the sale and purchase of goods incorporating the Conditions;
“Delivery Point” means the place where delivery of the Goods takes place under condition 6;
“Goods” means the goods (including any instalment or any part of them) which the Seller is to supply in accordance with these Conditions;
“Quotation” means the price for the Goods to be supplied under the terms of the Contract provided by the Seller to the Buyer.
“Seller” means Boulton Limited, Cannon Business Park, Darkhouse Lane, Coseley, West Midlands, WV14 8XQ.

1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

2. Basis of the Sale

2.1 Subject to any variation under condition 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).

2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.

2.3 These Conditions apply to all the Seller’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed on behalf of the Seller.

2.4 Each order for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.

2.5 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 (including the cost of all labour and materials used) damages, charges and expenses incurred by the Seller as a result of cancellation.

3. Description

3.1 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

3.2 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, trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification.

4. Patterns and Tooling

4.1 Where the Buyer supplies patterns or tooling the Quotations of the Seller assume that such patterns or tooling are in good condition, true to drawing and entirely suitable for the Seller’s method of production and for the production of the Goods in the quantities required.

4.2 Replacements of and alterations or repairs to Buyer’s patterns or tooling or other equipment due to normal wear and tear shall be paid for by the Buyer.

4.3 Where patterns or tooling are not supplied by the Buyer such patterns or tooling shall be the property of the Seller unless expressly agreed in writing and signed on behalf of the Seller.

4.4 Carriage on patterns or tooling and other equipment supplied by the Buyer will be paid for by the Seller in one direction only.

4.5 The Seller takes all reasonable care to protect the Buyer’s patterns or tooling whilst they are on the Seller’s premises but does not accept any liability for any loss, damage or expense arising from any cause whatsoever which does not solely and directly result from failure by the Seller to exercise reasonable skill and care. All patterns or tooling provided to the Seller by the Buyer will remain at the Buyer’s risk. The Buyer shall be responsible for insuring any such patterns or tooling.

4.6 The Seller reserves the right to charge the Buyer for the cost of storage of the Buyer’s Tooling and to require the Buyer to remove such Tooling from the Seller’s premises on not less than 3 months notice in writing.

5. Price

5.1 Unless otherwise agreed by the Seller in writing the price for the Goods shall be the price stated in the Seller’s Quotation.

5.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities, design or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

5.3 The price for the Goods shall be exclusive of any value added tax and delivery unless otherwise agreed by the seller in writing.

6. Payment

6.1 Payment of the price for the Goods is due on the last working day of the month following the month in which the Goods are invoiced, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer.

6.2 Time for payment shall be of the essence.

6.3 The Buyer shall make all payments due under the 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 the Seller to the Buyer.

6.4 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 Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or, as the case may be, the Seller has tendered delivery of the Goods.

6.5 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:

6.5.1 suspend all or any further deliveries to the Buyer made under that or any other contract with the Buyer and in such event the Buyer shall not be released from its obligations to the Seller under that or any other contract or cancel the Contract or any other contract with the Buyer and to claim damages from the Buyer for breach of contract;

6.5.2 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

6.5.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 2 per cent per annum above Bank of Scotland plc base rate from time to time accruing daily, until payment in full is made.

6.6 The Seller may without notice set off any sums from time to time owed to the Buyer in or towards the satisfaction of all and any liabilities of the Buyer to the Seller whether or not under this Contract.

6.7 Each invoice paid after the due date will be subject to a finance charge of £100.00 per invoice in addition to any interest calculated in accordance with clause 6.5.3

7. Delivery

7.1 Unless otherwise agreed, delivery of the Goods shall be made by the Seller delivering the Goods to the Buyer’s premises or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.

7.2 Any dates specified by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.

7.3 Subject to the other provisions of these Conditions the Seller will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Seller’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds a reasonable period.

7.4 Where the Goods are to be delivered in instalments, 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.

7.5 If the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess, if any, of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

7.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:

7.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable cost of storage, including insurance;

7.6.2 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; or

7.6.3 suspend any further performance of the Contract or any other contract.

8. Risk and Property

8.1 Risk of damage to or loss of the Goods shall pass to the Buyer:

8.1.1 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

8.1.2 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.

8.2 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 sold or agreed to be sold by the Seller to the Buyer under any other contract.

8.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's agent or 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 have a fiduciary duty to the Seller to account 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.

8.4 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 re-sold), 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 and for that purpose the Buyer hereby authorises and licences the Seller, its officers, employees and agents and to enter upon any land or building upon which the Goods are situated to recover those Goods.

8.5 The Buyer shall not be entitled to or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall, without prejudice to any other right or remedy of the Seller, forthwith become due and payable.

9. Warranties and Liabilities

9.1 Subject to the Conditions set out below, the Seller warrants that the Goods will be fit for their purpose and will be free from defects in material and workmanship for a period of 12 months from the date of their initial use or 12 months from delivery, whichever is the first to expire.

9.2 The above warranty is given by the Seller subject to the following conditions:

9.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design, specification, pattern or tooling supplied by the Buyer or any material supplied by the Buyer;

9.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage or negligence of the Buyer;

9.2.3 if the total price for the Goods has not been paid by the due date for payment, the Seller shall be under no liability under the above warranty, or any other warranty, condition or guarantee until the total price for the Goods has been paid;

9.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Seller in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.

9.3 Any claim by the Buyer which is based on any defect in the quality or conditions of the Goods or their failure to correspond with specification shall, whether or not delivery is refused by the Buyer, be notified to the Seller within a reasonable time 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 delivery is not refused, and the Buyer does not notify the Seller in accordance with this Condition, 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.

9.4 Any claim by the Buyer which is based on any shortfall in the quantity of Goods delivered shall, whether or not delivery is refused by the Buyer, be notified to the Seller within 7 days of the date of delivery.

9.5 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.

9.6 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 (other than any fraudulent misrepresentation), 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 compensation whatsoever (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 and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.

9.7 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control:

9.7.1 Act of God, explosion, flood, tempest, fire or accident;

9.7.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;

9.7.3 Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

9.7.4 Import or export regulations or embargoes;

9.7.5 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);

9.7.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery;

9.7.7 Power failure or breakdown in machinery.

10. General

10.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.

10.2 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 be to the extent of such illegality, invalidity, voidness, 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.

10.3 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.

10.4 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.

10.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

10.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.