In these conditions:
“The Company” means Lestercast Ltd.
“The Buyer” means the person, firm, company or other body whose order for goods is accepted by the Company.
“The Contract” means the contract for the sale and purchase of the goods.
“The Goods” means the goods or services, the subject matter of the Contract between the Company and Buyer.
No contract shall exist until the Buyer’s order has been accepted by the Company. In the event that the Buyer’s order seeks to make the sale subject to terms different from these Conditions, acceptance of the Buyer’s order by the Company (whether or not such acceptance is effected by a formal Order Acknowledgement), shall be deemed to be a fresh offer by the Company on the basis of these conditions, which shall be deemed accepted by the Buyer, if the Buyer has raised no counter offer or objection within seven days of the date of the Buyer’s order. No conditions or terms stipulated in any other communication or document shall vary or annul any of these conditions, except insofar as the same are expressly consented to in writing by the Company.
Prices quoted are ex-works and may be withdrawn or varied at any time and, unless otherwise specified, shall be automatically withdrawn after 30 days.
Prices exclude Value Added Tax which the Buyer shall be additionally liable to pay to the Company.
Prices shall be subject to amendment where the Buyer wishes to vary the design, weight, quantity or specification of the Goods.
The period quoted for delivery by the Company is intended as an estimate only and is not a contractual commitment, and the Company shall not be liable for any damages or losses arising out of any delivery.
Delivery will be arranged to the address specified in the Buyer’s order at the Buyer’s expense. If a delivery address is not specified, the Company will notify the Buyer in writing that the Goods are available. Where the Buyer fails to take delivery of the Goods or make arrangements to collect them, the Company shall continue to be entitled to invoice the Buyer and be paid under these conditions.
The Company shall use reasonable efforts to ensure that the quantity of the Goods delivered is as provided by the Contract, but if the quantity is more or less than required, the following provisions will apply:
3.3.1 Provided that the quantity actually delivered is not more than 10% more or less the Contract quantity, the Buyer shall accept the quantity delivered and shall pay for that quantity at the Contract rate.
3.3.2 Where the quantity actually delivered differs from the Contract quantity by more than 10%, the Buyers shall notify the Company of the discrepancy by the end of the next working day, following the day of delivery.
3.3.3 If the Company delivers a quantity which exceeds the Contract quantity by more than 10%, the Buyer shall not be entitled to reject the whole delivery but must accept and pay for the Contract quantity. The Company will, at its own expense, collect the excess.
3.3.4 If the Company delivers a quantity which is more than 10% less than the Contract quantity, the Buyer shall not be entitled to reject the delivery but shall accept the quantity actually delivered. The Company may, at its own option, either make good the shortfall by delivering further goods or allow the Buyer to pay at the Contract rate for the quantity actually delivered.
GUARANTEE AND LIMITATION OF LIABILITY
The Buyer agrees that it is best able to estimate the extent and nature of the insurance cover suitable for its business and property, from time to time, and the Buyer therefore acknowledges that it is reasonable for the Company to sell the Goods and fix the purchase price of the Goods on the basis of the exclusions and limitations or liability and the indemnity set out in this Clause 4, and the Buyer agrees that it will be responsible for effecting insurance cover, as mentioned above, as may be appropriate to its business and property.
The Company’s liability (both in Contract and in tort), in respect of defects shall be limited as provided in Clause 4.3. Such measures shall relate only to the actual faulty items, or their value, and the Company shall not in any circumstances be under any liability to the Buyer in respect of indirect or consequential loss or damage, or loss of profits sustained by the Buyer, provided always that these Conditions do not exclude or restrict the Company’s liabilities for death or personal injury arising from its negligence.
Goods supplied by the Company which are shown to be defective in materials or workmanship within 3 months from the date of despatch of the Goods will, subject to these Conditions, be repaired or replaced by the Company or be the subject of the issue of a credit note in respect thereof, or the granting of a refund or such other compensatory, on the condition that such Goods:
4.3.1 Have not been altered (unless consent has been obtained for such alteration) or subjected to misuse or unauthorised repair;
4.3.2 Have been properly installed , connected and maintained; and
4.3.3 The defect was not materially as a result of the specifications (if any) provided by the Buyer.
On condition also that the Buyer notifies the Company, and any carrier under Condition 3 (if applicable), and the Buyer is not in breach of any of its obligations hereunder. The cost of dismantling and re-assembling the Goods and all delivery costs in respect of any inspection, repair or replacement by the Company shall be borne by the Buyer.
Where the Company is not the manufacturer of part of the Goods, and the Buyer is notified as such, the liability under any claim arising in respect of such goods or item will be limited to a warranty of guarantee identical in terms to the warranty of guarantee received from the manufacturer of the goods or items concerned, provided always that the liability of the Company shall never be any greater than that provided for under Clause 4.3.
If the loss to be compensated under Clause 4.3 or 4.4 is in excess of £500,000, the Company’s liability shall be limited to £500,000 (except in cases involving death and/or personal injury), in respect of any one occurrence regardless of the value of the loss, expense or damage incurred by the Buyer.
Any liability arising under any condition, warranty or stipulation, express or implied, statutory or otherwise, is hereby excluded except to the extent as implied by Section 12 of the Sale of Goods Act 1979, or subject to the contrary in these conditions.
The Buyer agrees to indemnify the Company against any damages, losses, costs, claims or expenses incurred by the Company, in respect of any liability of the Company towards a third party arising out of, or in connection with, any of the Goods supplied by the Company or their operation or use, and whether arising by means of the negligence of the Company or otherwise.
The Company reserves the right to cancel, vary or suspend the operation of the Contract if events occur which are in the nature of force majeure including (without prejudice to the generality of the foregoing), fire, flood, storm, plant breakdown, strikes, lock-outs, riots, hostilities, non-availability of materials or supplies or any other event outside the control of the Company, and the Company shall not be held liable for any breach of Contract resulting from such event.
RISK AND PROPERTY IN THE GOODS
The risk in the Goods shall pass to the Buyer at the point of delivery, to any carrier, or on notification to the Buyer that the Goods are ready for collection (as the case may be).
Notwithstanding anything herein contained, the property in the Goods will not pass to the Buyer until all sums due to the Company from the Buyer have been paid in full.
Until full payment for the Goods or for any other Goods or Services, provided to the Buyer by the Company, has been received:
5.3.1 The Buyer shall hold the Goods as the Company’s agent only, on trust, and shall be liable to account for the same.
5.3.2 The Buyer shall store the Goods (at no cost to the Company), so that they are separately identified from all other Goods stored by the Buyer and clearly identified as belonging to the Company.
5.3.3 The Buyer shall, if requested by the Company, deliver the Goods forthwith to the Company.
The Buyer may in the ordinary course of its business sell and deliver the Goods or any product produced with the Goods, in which the property remains with the Company, to any third party as the Company’s agent (but as principal vis-à-vis any third party), in a fiduciary capacity for the account of the Company but, if the Buyer is unable to pay its debts as they fall due, or is the subject of bankruptcy petition, or calls a meeting of creditors, or passes a resolution, or has a petition presented relating to the winding up of the Buyer, or if the Buyer shall have a receiver appointed over any part of its assets or enter into a composition or arrangement with its creditors or any arrangement under the Insolvency Act 1986, or if the Buyer shall commit a breach of any of these conditions, whether as to payment or otherwise, the Buyer’s authority to sell the goods shall automatically be suspended and the Company may recover and resell any or all of the Goods and enter onto the Buyer’s premises for that purpose (without prejudice to any other right or remedy).
Nothing in this Condition 5 shall give the Buyer the right to return the Goods to the Company.
Unless quoted by the Company on a different basis or otherwise agreed to in writing, the price of the Goods will become payable not later than 30 days from the date of the relevant invoice.
Where the Buyer exceeds the payment terms on this or any other order (whether the entire Contract price or any instalment thereof):
6.2.1 The whole of the Contract price shall immediately become due and payable and the Company shall be entitled either to withhold delivery in respect of some or all orders with the Buyer, or to cancel any such orders; and/or
6.2.2 The Company shall be entitled to charge interest on overdue invoices at a rate of 4% above the Bank of England base rate, from time to time, from the date the invoice was due until the date payment is received; this period to be continued, where judgement is awarded against the Buyer, until settlement is obtained.
CANCELLATION AND STORAGE
If the Buyer cancels, extends or delays or purports to cancel, extend or delay the Contract or any part thereof, or fails to take delivery of any Goods at the time agreed, or if no time is agreed within a reasonable time, then the Buyer will be liable (without prejudice to any other rights), to pay the Company a sum equal to any resulting loss, damage or expenses incurred, in connection with the supply or non-supply of the Goods, including those insured by the Company under Clause 7.3. and the Company shall be entitled to terminate the Contract with immediate effect.
If the Company cancels or varies the Contract, then any such cancellation or variation shall not give rise to any claim by the Buyer, provided always that the Buyer shall remain liable to pay for any of the Goods delivered to it prior to the date of any such cancellation.
If the Buyer fails to take delivery of the Goods when they are ready for delivery, the Company may either store the Goods (or have them stored by third parties) or dispose of the Goods, and the cost of any storage, together with any additional insurance or double handling charges will be added to and form part of the price of the Goods and shall be for the account of the Buyer. Should the Company dispose of the Goods, the Buyer shall additionally pay to the Company the shortfall (if any) between the Contract price and the price at which the Company actually disposed of the Goods or part thereof.
DESIGN OF GOODS
Where the Goods are manufactured in accordance with information or drawings supplied by the Buyer, or where standard Goods are altered in accordance with the Buyer’s instructions:
8.1.1 No guarantee or warranty is given by the Company as to the fitness for purpose or otherwise of the Goods supplied (this being without prejudice to any other of these conditions).
8.1.2 The Buyer will indemnify and keep the Company indemnified against all liability incurred as a result of such Goods infringing any patent, registered design, copyright or other like protection.
8.1.3 The Company accepts no responsibility for any errors, omissions or other defects in any drawings, designs or specifications not prepared by the Company.
DIES AND PATTERNS (“DIES”)
The quoted price includes part of the development cost of Dies to be provided by the Company. The design of such Dies remains the exclusive copyright of the Company. If the order is cancelled by the Buyer or the Buyer is in breach of the Contract, the Buyer shall be liable for the full cost of the Dies (without prejudice to any other remedies available).
Notwithstanding payment by the Buyer of part of the cost of the Dies, the Dies provided by the Company shall at all times remain its property.
Where Dies are to be provided by the Buyer, the Company will assume that such Dies are in good condition, true to drawing and entirely suitable for use to produce components at the rates and in the quantities required by the Contract.
All Dies are part cost and the Buyer may not remove a die until the full cost of the die has been paid to the Company and any outstanding monies owed to the Company have been paid in full.
In the event of the Buyer going into liquidation or receivership, the Company takes full ownership of all the Buyer’s Dies until the full cost of the Dies has been paid to the Company and any outstanding monies have also been paid in full.
All Dies owned or under the Company’s control will be maintained in good condition throughout their normal working life (normal wear and tear excepted). All reasonable steps will be taken to protect any such Dies.
The Company agrees to store and maintain all Dies for a period not exceeding 3 years from delivery of the last component to be made using such Dies. Thereafter, the Company may dispose of the Dies, having first advised the Buyer of its intention by giving one month’s written notice to the Buyer at its last known address.
The cost of the Dies will be invoiced upon completion of the Contract or, subject to prior agreement, by stage payments during production.
Drawings, illustrations and specifications submitted by the Company to the Buyer remain the property of the Company and must not be communicated to any third party without the prior written permission of the Company.
Where the Goods’ design will be or was designed by the Company or the Company’s employees, pursuant to a commission from the Buyer (whether in consideration of the Buyer’s order or otherwise), unless otherwise agreed, the Buyer hereby assigns or agrees to assign to the company the design right in that design (and the right to apply for registration of that design, if applicable).
In addition to the Contract price, the Buyer is liable, unless agreed otherwise in writing, for all packaging costs, insurance and carriage. If the Buyer requires special packaging, the Company must be notified in writing of such requirement.
The Goods are carefully inspected and, where practicable, submitted to standard tests before despatch. If special tests, in the presence of the Buyer’s representative are required, unless otherwise agreed, these must be made at the Company’s premises, and all costs in respect thereof shall be charged to the Buyer.
The tests will proceed without the Buyer’s presence if 7 days has elapsed after written notice to the Buyer to attend.
Any Contract or order will terminate immediately upon occurrence of any one or more of the following events:
12.1.1 A petition is presented or an order made or a resolution passed for the winding up, dissolution or bankruptcy or the Buyer becomes insolvent or unable to pay its debts as they fall due, or proposes to enter into any composition or arrangement with its creditors or has a receiver or other similar officer appointed over all or any of its assets.
12.1.2 The Buyer is in breach of any of these conditions.
The termination of any contract or order in any way whatsoever will be without prejudice to the rights, obligations and limitation of either party accrued prior to termination.
Any waiver of the Contract terms shall not prejudice or affect the Company’s rights and remedies in respect of any subsequent breach or non-observance thereof by the Buyer. The acceptance of any payment after the specified due date shall not constitute a waiver of the Buyer’s obligations to make future payments on the specified dates.
HEALTH AND SAFETY AT WORK
So far as is reasonably practicable, the Company will ensure that the Goods are safe and are without risk to health when properly used. If the Buyer is in any doubt concerning the safe use of the Goods, the Company must be forthwith notified in writing and the Buyer must cease to use the Goods until the Company has had the opportunity to inspect the same. Where safety devices and guards are supplied by the Company, no warranty is given that the Goods comply with the laws which shall govern the operation thereof by the Buyer.
The interpretation and operation of the Contract is subject to English law, and the English language shall be the definitive language of such Contract. The Buyer hereby agrees to the exclusive jurisdiction of the English courts to which, subject always to the provision of Condition 16, hereof and the option of the Company to bring any action in any court having jurisdiction, disputes relating to the Contract will be submitted, provided always that the Company shall be entitled to enforce any judgement against the Buyer wheresoever the Buyer may be resident, domiciled or the beneficial owner of assets.
Where both the Company and the Buyer so agree, any dispute, difference or question arising between the Company and the Buyer, as to the construction meaning or effect of these conditions, or as to their respective rights or liabilities under any Contracts to which these conditions apply or otherwise, may be referred to a single arbitrator to be agreed upon by both parties, or failing such agreement, to be nominated, upon the application of the Buyer or the Company, by the President, for the time being, of the Institute of Metallurgists and every such reference shall be deemed a submission to arbitration within and subject to the provisions of the Arbitration Act 1950 and any statutory modification or re-enactment thereof for the time being in force.