Tolway Fixings Limited - Conditions of Sale and Hire

1. Definitions

1.1 In these Conditions

"Buyer" or "Hirer" means the person who accepts a quotation of the Seller for the sale or hire of Goods or whose order for the sale or hire of Goods is accepted by the Seller

"Goods" means the goods which the Seller is to sell or supply on hire in accordance with these Conditions

"Seller" or "Owner" means Tolway Fixings Limited.

"Conditions" means the standard terms and conditions of sale and hire set out in this document including any special terms and conditions agreed in writing between the parties

"Contract" means the contract for the sale or hire of the Goods

2. Basis of the Contract

2.1 All quotations are made and all orders are accepted by the Seller subject in either case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions.

2.2 No variation to these Conditions shall be binding unless agreed in writing between an authorised representative of the Buyer and a director of the Seller

2.3 If the Buyer wishes to rely upon any statement or representation not set out in its order or the Seller's quotation it must fully set out such statement or representation in writing to the Seller in which case the Seller shall be entitled to submit a new quotation

2.4 Any typographical clerical or other error or omission in any sales literature quotation price list acceptance of offer invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller

3. Specifications

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

3.2 The quantity quality and description of and any specification for the Goods shall be those set out in the Seller's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller)

3.3 If the Goods are to conform 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

3.4 No order which has been accepted by the Seller may be cancelled by the Buyer except with the written agreement 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

4. Price of the goods

4.1 Except as provided in this clause the price of the Goods shall be the Seller's quoted price or where no price has been quoted (or a quoted price is no longer valid) the price listed in the Seller's price list current at the date of acceptance of the order. Unless otherwise agreed in writing by the Seller all prices quoted are valid for 30 days EOM only or until earlier acceptance by the Buyer after which time they may be altered by the Seller without giving notice to the Buyer

4.2 Except in the case of Goods expressly stated to be sold from stock the Seller reserves the right to increase the price of the Goods to reflect any increase in the cost to the Seller due to:

4.2.1 any raw material or manufacturer price increase made after the date of the Seller's quotation but prior to delivery of the Goods to the Buyer, or

4.2.2 any change in delivery dates quantities design or specifications for the Goods which is requested by the Buyer, or

4.2.3 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

4.3 Rates and prices quoted by the Company relate to the quantities shown in the quotation and the Company shall not be obliged to accept an order for a smaller quantity at the rates or prices quoted.

4.4 Unless otherwise agreed all prices are quoted by the Seller on a delivered basis and carriage will not be charged extra.

4.5 Unless otherwise stated all prices are quoted exclusive of VAT.

5. Terms of payment (sale and hire)

5.1 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.

5.2 The Buyer shall (subject only to delivery of the Seller's invoice) pay the price of the Goods on or before the last day of the month following the month in which the Seller became entitled to deliver its invoice. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.

5.3 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:-

5.3.1 cancel the contract or suspend any further deliveries to the Buyer

5.3.2 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

5.3.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid at the daily rate of 4 per cent per annum above Barclays Bank Plc base rate from time to time until payment in full is made.

6. Delivery

6.1 Unless otherwise agreed and save where the Buyer is to collect the Goods delivery of the Goods shall be made by the Seller delivering the Goods to the place of delivery notified by the Buyer.

6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

6.3 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.

6.4 The Buyer shall have no right to damages or to cancel the Contract if the Seller fails for any reason to meet any delivery time quoted.

6.5 If the Buyer fails to collect or take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery then without prejudice to any other right or remedy available to the Seller the Seller may:-

6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage or

6.5.2 sell the Goods at the best price readily obtainable (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

6.5.3 cancel the Contract or suspend any further deliveries to be made under the Contract without liability to the Buyer

7. Risk and property

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

7.1.1 if the Seller delivers the goods by its own transport at the time when the Goods or any instalment thereof arrive at the place of delivery or

7.1.2 in all other cases at the time the Goods or any instalment thereof leave the Seller's premises whether or not the Seller arranges transport. If the Seller arranges transport it does so as the Buyer's agent and the Buyer must make any claim for loss or damage in transit against the carrier.

7.2 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 agreed to be sold by the Seller to the Buyer for which payment is then due.

7.3 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 properly stored protected and insured and identified as the Seller's property and 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. Warranties and liability

8.1 Subject to the conditions set out below the Seller warrants that the Goods sold will correspond with their specification at the time of delivery and will be free from defects in materials and workmanship.

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

8.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing design or specification supplied by the Buyer

8.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in writing) misuse or alteration or repair of the Goods or subjecting the Goods to any process without the Seller's approval

8.2.3 the Seller shall be under no liability under the above warranty (or any other warranty condition or guarantee) if the total price for the Goods has not been paid by the due date for payment

8.2.4 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 or supplier thereof to the Seller

8.3 Subject as expressly provided in these Conditions warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.4 Any claim by the Buyer which is based on any defect in the quality or condition 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 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) as soon as reasonably practical after discovery of the defect or failure. If delivery is not refused and the Buyer does not notify the Seller accordingly 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.

8.5 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 hire charge or the price of the Goods (or a proportionate part thereof) but the Seller shall have no further liability to the Buyer.

8.6 The Seller shall not be liable to the Buyer by reason of any representation 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 claim for consequential compensation whatsoever (and 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 except as expressly provided in these Conditions.

8.7 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.

9. Indemnity

9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent copyright design trade mark or other industrial or intellectual property rights of any other person the Buyer shall notify the Seller immediately and the Seller shall be entitled to conduct negotiations with such claimant or any resultant litigation in either case as agent for the Buyer but at the cost and expense of the Seller.

10. Insolvency of buyer

10.1 This clause applies if:-

10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) enters into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or

10.1.2 an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Buyer or

10.1.3 the Buyer ceases or threatens to cease to carry on business or

10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly

10.2 If this clause applies then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

11. Acknowledgement by Buyer

In relation to goods manufactured by the Seller to the Buyer's design or specifications or exclusively or otherwise with special reference to the Buyer's requirement the Buyer acknowledges that (in the event the Buyer is in breach of its obligations under sub-clause 6.5) the Goods may not reasonably be capable of resale by the Seller or may otherwise have little or no commercial value and in such case the proper measure of the Seller's loss is unlikely to be less than the invoiced price of such Goods.

12. General

12.1 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision

12.2 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby

 

GOODS HIRE - ADDITIONAL PROVISIONS

13. Hire charge

13.1 Goods are hired at the daily or weekly rate stated in the Contract. The charge for hire commences from the time stated in the Contract and (unless otherwise agreed) continues during the period of hire until the Goods are returned to the Owner in a clean and serviceable condition against the Owner's receipt.

13.2 Where Goods are hired at a daily rate 'day' means the normal business opening hours of the Owner and (for charge purposes) includes any part of a day. Where Goods are hired at a weekly rate 'week' means any period of seven consecutive days and (for charge purposes) includes any part of a week. Any deposit paid by the Hirer may be applied by the Owner in or towards discharging any amount due to it by the Hirer under the Contract.

14. Basis of hire

14.1 Unless otherwise agreed all Goods are made available for hire on the basis that they are for collection by the Hirer from the Owner's premises on the date specified in the Contract.

14.2 It is the responsibility of the Hirer to satisfy himself that the Goods are in good working order and suitable for their purpose at the time of physical hand-over. The Hirer shall be deemed to be so satisfied upon signing the Owner's form of receipt for the Goods.

15. Use and loss of or damage to equipment

15.1 The Hirer is responsible for ensuring that all persons using the Goods during the period of hire are properly instructed in the safe and proper use of the Goods (in accordance with any instructions given or provided by the Owner).

15.2 If the Goods comprise electrical items the Hirer shall ensure that:

15.2.1 these are used with plugs and/or sockets as fitted or (if suitable replacements are fitted during the period of hire) returned in original condition at the end of the period of hire,

15.2.2 a suitable supply of electricity is provided, and

15.2.3 such equipment is correctly earthed (unless of double insulated specification).

15.3 The Hirer is responsible for the care and safekeeping of the Goods during the period of hire and their return in good order at the end of the period of hire. If at any time during the period of hire the Goods are damaged or other than in good and safe working condition the Hirer shall immediately return the Goods to the Owner for inspection.

15.4 The Hirer shall (in addition to the hire charge) pay the Owner all costs reasonably and properly incurred by it in repairing or restoring the Goods to their condition at the commencement of the period of hire.

15.5 The Hirer shall pay to the Owner the full replacement cost (without any deductions for usage or condition) of any Goods which are lost or stolen or damaged beyond economic repair during the period of hire. The Owner recommends that the Hirer insures the Goods on this basis.

16. Termination of hire

The Owner shall at any time be entitled to terminate the hire and repossess the Goods (without prejudice to its other rights under the Contract) if the Owner reasonably apprehends that the Hirer is or might be in breach of any of its obligations under the Contract.