Promart Terms and Conditions
1.1 In these Conditions:
`Buyer' means the person who accepts a quotation of the Seller for the sale of the
Goods or whose order for the Goods is accepted by the Seller
`Goods' means the goods (including any installment of the goods or any parts of
them) which the Seller is to supply in accordance with these Conditions
`Seller' means Promart Manufacturing Limited (registered in England under number (1751832)
`Conditions' means the standard terms and 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 Buyer and the Seller
'Contract' means the contract for the purchase and sale of the Goods
'Writing' includes telex, cable, facsimile transmission and comparable means of communication.
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.—VALIDITY Unless otherwise stated any quotation issued by the Seller will remain open for acceptance within 60 days, and shall then lapse.
I. Errors and omissions are subject to correction.
II. Unless otherwise stated in writing, prices charged will be those ruling at the date of despatch, as appropriate.
III. Unless otherwise specified, prices include for the supply only of goods but not for their packaging, delivery, off-loading, positioning or installation.
IV. All prices are exclusive of VAT which will be charged at the rate applicable.
V. 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, significant increase in costs of manufacture), any change in delivery dates, quantities 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.
I. With all first orders, and whenever else specified by the Seller, the Buyer shall pay the Seller in full as a condition prior to the dispatch of the goods. In all other cases payment must be made in full by not later than 30 days from the date of the invoice.
II. Where payment is not received by due date the Seller reserves the right to charge interest at the rate of 2% above the Midland Bank Base Rate, of the full invoice price charged, for each month or part of a month that payment is overdue, or, at the Seller's option, to suspend all deliveries of all goods to the Buyer, against any Contract, or to terminate the contract, and/or any other contracts.
III. Should the Seller be prevented by the Buyer from effecting delivery on the agreed due date, the full price of the goods shall become payable as if the goods had been delivered.
I. Any time expressed for delivery shall be deemed to be an estimate only, time not being of the essence of the contract unless separately agreed to in writing by the Seller.
II. The Seller accepts no liability for any loss sustained by the Buyer through late delivery, unless the Seller agreed to a time for delivery as being of the essence of the contract, and further, where a time for delivery has been agreed but delivery is delayed for any reason beyond the control of the Seller, a reasonable extension of time shall be allowed to the Seller.
III. Where a time for delivery is agreed and the Buyer fails for whatever reason, to accept delivery, the Seller; reserves the right to make a reasonable charge for storage and shall not be required to deliver the goods thereafter unless that reasonable charge is met.
IV. The Buyer shall provide adequate unloading facilities at the place of delivery and, where the goods cannot reasonably be unloaded by the Seller's delivery person, shall, at its own risk and expense. provide adequate labour for off-loading.
V. If advance notice of the approximate arrival time is required, this must be stated on the order.
VI. 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 installments in accordance with these Conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.—CANCELLATION Once manufacture has commenced, cancellation of items made to a Buyer's specific requirements will involve all manufacturing costs incurred up to the time of cancellation being charged to the Buyer.
7. DAMAGE OR LOSS IN TRANSIT
I. The Seller's responsibility ends with the arrival of goods at the designated delivery point. The Seller is not liable for any damage or loss caused during unloading.
II. Goods should be examined on arrival and any damage or loss entered on the Carrier's note, or the Carrier's note should be signed "unexamined".
III. Damaged goods will not be replaced or repaired if they have been used. In the event of damage, goods or parts thereof will be replaced free of charge providing that:—
(a) The Seller and the Carrier are notified in writing of such damage within 3 days of receipt of goods.
(b) The goods and packing are returned to the Seller carriage paid within 14 days clearly marked "free for repair".
(c) That the Seller is notified of the name and address of the Carrier and the date the goods were collected for return.
(d) In the event of non-arrival or shortage of goods, no claim will be entertained unless notification is given to the Seller within 10 days from the date of the Seller's invoice.
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 of 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 payment is then due.
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 fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and property stored, protected and insured and identified as the Seller's property, but shall be entitled to resell or use the Goods in the ordinary course of its business.
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 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.
8.5 The Buyer shall not be entitled to pledge 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 monies 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.—DRAWINGS All drawings shall remain the Seller's property and must not be wholly or partially used or copied without the Seller's written permission.
10.—DESCRIPTION Illustrations, descriptions and dimensions, in the Seller's catalogues or documents, although correct in general detail, do not constitute a sale by description. The Seller's policy is one of continuing improvement and the Seller reserves the right to vary or modify the design specification or finish without notice, unless written undertaking has been given to the contrary.
11.—REPLACEMENT Where the goods supplied by the Seller are of the Seller's design and manufacture, the Seller will make good any defects in those goods subject to the following conditions:-
I. The Buyer shall notify the Seller in writing at its address, Registered office:
Caddick Road, Knowsley Business Park, Prescot, Merseyside L34 9HP, as soon as is practicable after the defect has become known.
II. The Seller shall be provided with an adequate opportunity to examine the goods.
III. The Seller shall not be obliged to replace any goods or make any allowance or other arrangement if, in the reasonable opinion of the Seller, the defect has arisen from accident, misuse, neglect, incorrect installation, lack of reasonable maintenance, or any other cause beyond the reasonable control of the Seller.
IV. Where the defect is reasonably attributable to the fault of the Seller, the Seller shall replace or repair the defective goods, but shall not be liable to the Buyer for any costs of removal of the defective goods, or of installation of replacement goods, nor any consequential loss or damage of the Buyer arising there from.
V. The Seller's liability shall be limited to the free repair or replacement of materials and components manufactured by the Seller within a period of 12 months and associated labour charges within a period of 12 months from the date of despatch from the Seller's Works.
VI. Where goods and components supplied by the Seller are not of the Seller's
design and manufacture, the Seller's liability shall be limited to the guarantee provided by the manufacturer of such goods and components except in the instances of glass, tiles and illumination which are not covered under any warranty.
VII. Any warranty agreed between the Seller and the Buyer will commence upon the day of completed installation of all goods.
VIII. 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 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.
12.—INDEMNITY The Buyer shall indemnify the Seller against all damages, penalties, costs and expenses to which the Seller may be liable if any work done in accordance with the Buyer's specification infringes any third party property right.
13.—FORCE MAJEURE In the event of war, invasion, act of foreign enemy, hostility (whether war has been declared or not) civil war, rebellion, revolution, insurrection or military or usurped powers, the Seller shall be relieved of liabilities incurred under the contract wherever and to the extent to which fulfilment of such obligations is prevented, frustrated or impeded as a consequence of any such event or by statutes, rules, regulations, orders or requisitions issued by any Government Department, council or duly constituted authority, or from strikes, lock-outs, breakdown of plant or any other causes (whether or not of like nature) beyond the Seller's control.
I. The Seller reserves the right following delivery or installation of the Goods at the Buyer's premises at no extra cost to take and/or use for promotional purposes photographs and/or illustrations of the Goods.
II. Where any such photographs or illustrations feature or include the trade mark, design right or any intellectual property owned by the Buyer, the same shall only be used by the Seller with the Buyer's prior written consent.
III. The Buyer will ensure that any individuals appearing in any such photograph or illustration shall grant to the Seller "model release" or any other appropriate consent to use such material for reasonable promotional purposes.
15.—LAW AND ARBITRATION
I. The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.
II. Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of The Chartered Institute if Arbitrators, in accordance with the rules of that organisation.