Condition of Sale
This quotation is given on the basis that no contract will come into existence between us unless and until we despatch an acknowledgment of order to you and that (save as is provided in Clause 1 below) no goods or services will be supplied on any terms other than the contract terms set out below and by giving an order to us you will be deemed to agree that these contract terms apply.
Unless other terms and conditions are expressly accepted by FINDLAY IRVINE LTD of Bog Road, Penicuik, Midlothian, Scotland (hereinafter called “the Company”) by means of a written amendment to these Terms and Conditions signed by a Director of the Company, and referring specifically to the terms of conditions to be amended the Contract shall be on the terms and conditions set out below (hereinafter together called “the Contract Terms”) to the exclusion of any other terms and conditions whether or not the same are endorsed upon, delivered with, or referred to in any purchase order or other document delivered by the Purchaser to the Company.
(a) The Company will, as far as they reasonably can, transfer or make over to the Purchaser the benefit of any guarantee or warranty which may have been given by the manufacturer in respect of any goods the subject of this contract which are not made by the Company. In addition, if during the period of 12 months from the date of despatch from the Company’s factory, unless this period is varied by written agreement, any part manufactured by the Company is found upon inspection by the Company to have proved defective in material or workmanship under normal use and service and when properly installed and connected, the Company will in its option replace or repair such defective part free of charge. The Company will not however be liable to repair or replace any part if any identification or serial number thereon has been altered, defaced or removed or if the part has not been properly maintained in accordance with the Company’s recommended maintenance procedure or has in the opinion of the Company been subjected to any misuse, unauthorised repair, replacement, modification or alteration.
(b) Save as aforesaid the Company will in no circumstances be liable for any loss or damage of any kind whatsoever caused directly or indirectly by any defect in material or workmanship or any defect in the goods manufactured or supplied by the Company (hereinafter called “the goods”) or by any negligence of the Company or of any servant or agent of the Company and save as herein expressly provided all warranties and conditions express or implied statutory or otherwise are hereby expressly excluded.
(c) The Purchaser undertakes that he will not at any time for use against the Company seek to rely on any term, condition, warranty or representation other than the Contract terms.
(d) Persons dealing in the goods have no right or authority to bind the Company in any way or to assume on the Company’s behalf any obligation express or implied.
(e) Where the Company recommend the use of particular fluids, materials, accessories or power supplies with the goods the warranty set out above shall not apply to any goods or any part of any goods with which other fluids, materials, accessories or power supplies have been used but no such recommendation shall make the Company in any way liable for any defect in such fluids, materials, accessories or power supplies or defect resulting from wrong application or installation of such fluids, materials, accessories or power supplies otherwise than by the application or installation method recommended by the Company.
The Company carry on business as designers and manufacturers of control, monitoring and measuring equipment for transport related fields and parts thereof using both the Company’s own designs and manufacturing under licence. If the Purchaser cancels or purports to cancel the order or any part thereof or fails to take delivery of any goods at the time agreed (if any), should such cancellation or failure cause dislocation in the Company’s production, the Purchaser shall be liable without prejudice to any other rights of the Company to claim damages, to indemnify the Company against any loss, damage or claim resulting from such dislocation and against any loss, damage or expense incurred by the Company in connection with the manufacture or non-manufacture of the goods including the payment of licence or other fees, the cost of any material plant or tools used or intended to be used therefor and the cost of labour and other overheads.
The price specified is based upon the costs of materials, rates and hours of labour, transport charges, overhead charges and general working conditions ruling at the date of the quotation, upon various quotations for component parts from suppliers and upon the contract being executed during normal working hours. Unless otherwise stated the price stated in the quotation will be valid for a period of 60 days from the date of the quotation unless otherwise amended in writing. At the end of the aforesaid period the price will be subject to an amendment to reflect the effect of any variation stated in the above-mentioned costs between the date of the quotation and the date of delivery of the goods or (in the case of delivery by instalments) the final delivery.
Delays in Delivery
The Company will endeavour to complete the contract or deliver the goods within the time agreed (if any) but in no circumstances will it be liable for loss or damage of any kind whatsoever caused directly or indirectly by any delay in the completion of the contract or delivery of the goods. If by reason of force majeure the completion of the contract by the delivery of the goods is, in the Company’s opinion, rendered impracticable, the Company shall be at liberty to terminate the contract by sending by ordinary post or by delivering to the Purchaser a notice in writing to that effect. Thereupon the Purchaser will pay to the Company such a sum as will together with any other sums paid previously bear the same proportion to the total contract price (including any variation thereof) as the proportion of the goods delivered bear to the total contracted for.
Carriage and Packing
(a) Unless otherwise stated, all inland orders of the invoice value of £50 or over will be despatched carriage paid by road or goods train provided however that the cost of any excess for special or express delivery, if requested by the Purchaser, shall be borne by the Purchaser.
(b) Unless specifically agreed in writing there shall be no refund of any charge made for packing except in the case of non-expendable pallets or containers which are charged for and for which credit shall be given on return.
(c) No claim for damages or shortages will be considered unless the Company and the carrier are advised in writing within three days of delivery and no claim for non-delivery will be considered unless the Company is notified in writing within ten days of reasonable delivery time taking into account date of despatch.
The Company hereby gives notice that if goods supplied are exhibited or displayed at any exhibition, fair or show anywhere in the world it may result in the withdrawal of a licence from the Company or in the breach of a contract by the Company or in the imposition of a penalty upon the Company. The Purchaser shall be liable for any such loss to the Company caused by the Purchaser because of any such withdrawal, breach or imposition and is advised to consult the Company before exhibiting any of the goods at any such fair or show.
Government and Other Regulations
The Purchaser agrees with the Company that he will acquaint himself with the requirements of all relevant requirements of statutory or other authorities, bodies or corporations (in any country where the Purchaser sells or uses the goods) relating to the goods and undertakes that at all times whilst the goods are in his possession or under his control he will comply with such requirements and will indemnify the Company against any liability due to a breach of any such requirement.
Right of Use
No right or licence is granted by the Contract Terms to the purchase under any patent, copyright, registered design or other industrial property right except the right to use or to resell the goods.
The Purchaser undertakes to bring the stipulations in clauses 2, 3, 5, 7, 8, 9, 17, 18 and 20 hereof to the notice of all persons to whom the goods or any of them are sold, offered for sale, let, hired or otherwise disposed of and undertakes to ensure that the contract or other arrangement between the Purchaser and such other persons requires such other persons to comply with the said stipulations and also contains a provision in like terms mutatis mutandis to those contained in this clause.
Failure to Pay
Failure by the Purchaser to meet payment conditions renders the guarantee null and void and also in accordance with the terms of the contract for goods delivered shall entitle the Company at their option to withhold further deliveries both in respect of the Contract or series of Contracts in question and any other Contract for delivery of goods to the Purchaser until such payment has been made, but the Purchaser shall in such event also be liable to the Company for the cost of all materials and work in connection with the goods for thy purpose of future deliveries to the Purchaser less an allowance of the value thereof as realised or as utilised by the Company for other purposes. Further, in the event of payment of the price or any part thereof having become overdue, the Purchaser agrees that he holds the goods which have not been paid for as the Agent of the Company and will permit the Company to uplift such goods from the premises they may be at, and the Company may immediately sell any goods for which payment is overdue to a third party. In the event of failure to pay on the above date the Company shall in its option be entitled to treat the contract and any other contract with the Purchaser as cancelled by the Purchaser.
(a) The property in the goods shall pass on payment of the whole price.
(b) The Purchaser shall be liable for any loss of or damage to the goods after these have been handed over to a carrier or to the Purchaser.
Where the goods are manufactured to the design or specification of the Purchaser, the Purchaser warrants that such goods do no infringe any patent, registered design or other like protection or the provision of any statute, statutory instrument or regulation for the time being in force and undertakes to indemnify the Company against any claims which may be made against the Company in respect thereof.
The Company shall be entitled to assign, sub-contract or sub-let this contract or any part thereof.
Variation of Specification
Variation by the Company within the the specification of the goods shall not constitute a breach of contract or impose upon the Company any liability whatsoever.
(a) Failure by the Company to enforce any of the Contract Terms shall not be construed as a waiver of any of the Company’s rights whatsoever.
(b) This Contract shall be construed and operate in accordance with the Law of Scotland and the Purchaser hereby submits himself to the jurisdiction of the Scottish Courts, except in the case where the Purchaser’s residence or principal place of business is in England, in which event the law of England shall apply and the Purchaser hereby submits himself to the jurisdiction of the English Courts.
Any performance figures given by the Company are based upon experience and are such as the Company expects to obtain on tests but are not guaranteed. The Company will however accept no liability if those figures are not obtained unless the Company specifically guarantees them under an agreed sum as liquidated damages and a bonus, subject to the recognised tolerances and rejection limits applicable to such figures.
All descriptions, drawings and other particulars furnished in catalogues, price lists and other documents issued by the Company area as accurate as possible, but being given for general information are not undertakings by the Company are not to be treated as such unless specific variation of the Contract Terms herein provided.
Where the Purchaser sends to the Company materials, tools, etc, in connection with an order, the Company accepts no responsibility for insuring the Purchaser’s property except by arrangement in writing. Any patterns, jigs or tools provided by the Company shall remain the Company’s property except as stated by the Company in writing.
We will recycle all WEEE and other recyclable materials where they are returned to us. Should the material not be returned to us, then the customer has accepted responsibility to recycle the materials.
Acceptance of Goods
The goods shall be deemed to be accepted by the Purchaser unless the Purchaser has, within seven days of delivery to the Purchaser or his agent, intimated to the Company in writing that he declines to accept the goods and the grounds upon which his declinature is based.