TERMS AND CONDITIONS OF SALE
In these Conditions unless the context otherwise requires:
Seller means Hamilton Bros (Engineering) Ltd whose registered office is at St Leonard Street, Lanark ML11 7DZ.
Purchaser means the individual, company, institution or other party who accepts a quotation by the Seller to supply the Goods or the Services or whose order for the Goods or Services is accepted by the Seller.
Goods means the Goods which the Seller agrees to supply in accordance with the Contract.
Services mean the mechanical, engineering and other services (if any) to be provided by the Seller in terms of the Contract and whether in conjunction with the supply of the Goods or otherwise.
Contract means the Contract for the supply and purchase of the Goods and/or the provision of the Services on the basis of these Conditions howsoever the same is constituted.
Conditions mean these terms and conditions and shall include any special and/or additional provisions that such extraneous terms are signed off by a named party and terms agreed in writing between the Seller and the Purchaser. In the event of any ambiguity between these terms and conditions and any such special and/or additional terms, the special and/or additional terms shall prevail.
The headings in the Conditions are for convenience only and shall not affect the interpretation.
2. Contract Terms
2.1 Any quotation made by the Seller or order accepted by the Seller is made/accepted subject to the Conditions that shall apply in place of and prevail over any other conditions contained or referred to in the purchaser’s order notwithstanding anything to the contrary, shall be incorporated in and govern the Contract (save as provided herein) to the complete exclusion of all other terms and conditions.
2.2 No variation to or derogation from the Conditions shall be binding unless specifically accepted in writing by the Seller.
3.1 All quotations are based on prevailing costs as at the time of quotation. The Seller reserves the right at any time prior to delivery in terms of the Contract to increase the price to take account of any increase in the costs of materials, labour, transport or any other matter having an effect on costs.
3.2 The price is exclusive of Value Added Tax which shall be charged to the Purchaser in addition, in accordance with the regulations from time to time in force.
4.1 The Seller reserves the right to require payment for the Goods in full prior to delivery or for the Services prior to them being provided.
4.2 Otherwise the Purchaser will make payment of the Sellers invoice within 14 days after the date of the invoice (hereinafter “the Due Date”) even if delivery (where applicable) shall not have then taken place.
4.3 The time of payment shall be of the essence of the Contract. If the Purchaser fails to make payment on the Due Date (without prejudice to any other remedy available to the Seller) the Seller shall be entitled to:
(a) charge the Purchaser interest at the rate of 3% per month over the base rate of the Clydesdale Bank Plc from time to time in force until payment is made in full, payable to Hamilton Bros (Eng) Ltd;
(b) withhold any further deliveries to the Purchaser and repossess any Goods already delivered;
(c) treat the Contract as repudiated. (d) place the matter in the hands of their debt recover agents, without prior warning in writing, and claim a full reimbursement of any fees or disbursements paid to the debt recovery agent to aid recovery of monies outstanding.
4.4 In the event that the Purchaser fails to make full payment for Services on the Due Date (Without prejudice to any other remedy available to the Seller including that contained in Clause 4.3 above) the Seller shall be entitled to withhold return of any goods upon which Services have been provided until full payment of all sums outstanding in respect of Services provided has been made. In the event that such full payment is not made within three months after the Due Date the Seller shall be entitled to sell the goods upon which Services have been provided and to apply the proceeds of such sale in reduction of all sums outstanding in respect of the Services provided and in offsetting all costs arising out of the storage and sale of the goods upon which such Services were provided, and for the purposes of such sale the Seller shall, act as the agent of the Purchaser.
5.1 Any date quoted for delivery of Goods or completion of Services represent the Seller’s best estimate of which delivery or completion of Services should be possible but shall not bind the Seller occasioned by late delivery or failure to complete Services by the date so quoted. Time of delivery or completion of Services shall not be of the essence of the Contract and the Purchaser shall have no right to seek to cancel the Contract or seek to terminate the Contract as a result of late delivery or failure to complete Services by the date so quoted. The Seller reserves the right to deliver the Goods before the quoted delivery date subject to giving prior notice of its intention to do so.
5.2 Where the Seller is to deliver the Goods the Seller reserves the right at its Option to require the Purchaser to unload the Goods and where it exercises that option delivery shall be deemed to have taken place when the Purchaser commences unloading. In all cases it shall be the responsibility of the Purchaser to ensure that clear and suitable access to the delivery point is given. In the case of Goods or goods upon which Services have been provided to be uplifted from the Seller’s premises delivery shall be deemed to take place when the Purchaser uplifts such Goods or goods.
5.3 If the Purchaser fails to give adequate instructions regarding delivery of the Goods or to take delivery at the time for delivery the Seller in its option may:
(a) store the Goods or goods upon which Services have been provided and recover all costs thereby incurred from the Purchaser.
(b) sell the Goods and recover all costs thereby caused together with any shortfall in the price from the Purchaser.
6.Risk and Title
6.1 Risk of damage or loss of the Goods shall pass to the Purchaser at delivery
6.2 Notwithstanding delivery and the passing of risk no legal or equitable title to the Goods shall pass to the Purchaser until the Seller has received payment in full of the price in respect of the Goods and of all other sums which may be due by the Purchaser to the Seller in terms of the Contract or any other contract entered into between the Seller and the Purchaser.
6.3 Until title passes the Purchaser shall keep the Goods separate from those of the Purchaser and all third parties properly stored and maintained, insured for their full value and identified as belonging to the Seller.
7. Warranties and Liabilities
7.1 The Seller warrants that it has title to the Goods.
7.2 Subject to the provisions of the Clause the Seller warrants that:
(a) at the time of the sale the Goods shall be of merchantable quality and free from material defects other than those commensurate with the age and type of Goods in question. .
(b) Services shall be completed without material defect.
7.3 Save as provided in this clause and except where the Goods are sold and/or Services are provided to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions or other terms implied by statute or common law are hereby expressly excluded save to the extent they may not be lawfully excluded. When the Goods are sold and/or Services provided to a consumer within the meaning of the Unfair Contract Terms Act 1977 their statutory rights are not affected by the provisions of this clause.
7.4 The Seller shall be liable to indemnify the Purchaser in respect of any claim for death or personal injury to any person in so far as such is attributable to the negligence or breach of duty of the Seller.
7.5 Any other liability under this contract in respect of the seller shall be limited to £1,000.00 any one contract.
7.6 The Seller shall not be liable in respect of any claim by the Purchaser for costs, damages, loss or expense (consequential or otherwise) or indemnity in respect of the same which arises out of or in connection with the Sale of the Goods or the provision of Services save as otherwise provided in this clause.
7.7 Any defects in goods or services must be reported to Hamilton Bros (Eng) Lld within 3 working days and put in writing within 7 days.
7.8 The Purchaser shall indemnify the Seller in respect of all costs, damages, loss or expense or claims which arise out of or in connection with the sale of the Goods or provisions of Services or from the use of or its dealings with the Goods or goods upon which Services have been provided save as otherwise provided in this clause.
8. Force Majeure
The Seller shall not be liable to the Purchaser or be deemed to be in breach of Contract by reason of any failure to perform the Contract if such failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the foregoing generality the following shall be deemed to be beyond the Sellers reasonable control, Acts of God, trade disputes, strikes, lock outs, difficulties in obtaining raw materials or labour, war, civil disturbance, flood, tempest, fire or accident.
9.1 In the event that the Purchaser:
(a) makes a voluntary arrangement with creditors or has a Receiver, Administrator or Liquidator appointed or takes any steps for the purpose of having such a person appointed;
(b) is sequestrated or signs a Trust Deed or enters into a composite arrangement with creditors;
(c) ceases to carry on business;
then the Seller, without prejudice to any other rights, shall be entitled in its option to suspend further deliveries, treat the Contract as repudiated or re-possess the Goods.
9.2 In the event that any of the events referred to in Clause 9.1 above occur and the Purchaser has failed to make payment for Services in terms of Clause 4.2 hereof, the Seller shall immediately be entitled to sell any goods upon which Services have been provided, in terms of Clause 4.4 hereof and shall not be required to wait for the three month period referred to in Clause 4.4 aforesaid prior to such sale.
10. Purchaser’s Acknowledgement
The Purchaser acknowledges that in entering into the Contract. It has not relied upon any representation made by or on behalf of the Seller and that the relationship between the Purchaser and the Seller shall be wholly governed by the Contract.
The Purchaser shall not assign any of its rights and obligations arising out of the Contract without the consent of the Seller. The Seller shall be entitled to sub-contract performance of its obligation but shall remain liable to the Purchaser in accordance with the terms of the Contract.
12. Choice of Law
12.1 The Conditions and the Contract shall be governed and construed in accordance with the Law of Scotland.
12.2 The Purchaser hereby prorogates the non-exclusive jurisdiction of the Scottish Courts.
12.3 The Purchaser acknowledges that in the event that any provision in the Conditions or terms of the Contract is void or unenforceable such invalidity or unenforceability shall not invalidate the remaining provisions or terms which shall be given full effect to.