TERMS & CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES
The buyer’s attention is in particular drawn to the provisions of condition 10.3.
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
“Buyer” the person, firm or company who purchases the Goods and/or Services from the Company.
“Company” Teepee Material Handling Limited (Company Number 02073740) whose registered office is at Unit 8 Bagley Industrial Park, Northfield Road, Netherton, Dudley, West Midlands DY2 9DY.
“Contract” any contract between the Company and the Buyer for the sale and purchase of the Goods or the provision of Services incorporating these conditions.
“Delivery Point” the place where delivery of the Goods or performance of the Services is to take place under condition 4.
“Goods” any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
“Intellectual Property” Patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and to protect the confidentiality of, confidential information (including know how), and all other intellectual property rights.
“Services” the services to be provided by the Company under the Contract, together with any other services which the Company provides or agrees to provide, to the Buyer.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 A reference to a party includes its successors or permitted assigns.
2. Application of terms
2.1 Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods and/or Services shall have no effect unless expressly agreed in writing and signed by a director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods or Services by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions which shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer or performs the Services.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.8 Acceptance of delivery of the Goods or commencement of the Services shall be deemed conclusive evidence of the Buyer’s acceptance of these conditions.
2.9 Any typographical, clerical or other error or omission in any sales literature, quotation, acceptance or offer, invoice or other document or information issued by the Company shall be subject to correction without liability on the part of the Company.
3.1 The quantity and description of the Goods or Services shall be as set out in the Company’s quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
3.3 You acknowledge that all Intellectual Property in any designs and drawings or Goods provided by us vest (as between you and us) solely with us. You acknowledge that you have no Intellectual Property rights in any designs or drawings provided by us and that all copyright vests solely with us. You acknowledge that you will not use any designs or drawings provided by us without our prior written consent. We reserve the right to charge you for any designs and drawings at our discretion.
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Company; or if the Goods or Services are to be provided in accordance with a specification or any other document, data information or materials submitted by the Buyer, the Buyer shall indemnify the Company against all liabilities, loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any Intellectual Property rights of any other person which results from the Company’s use of the Buyer’s information. This clause 3.4 shall survive termination of the Contract.
3.5 The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or regulatory requirements. We reserve the right to charge you for any amendments.
3.6 No order which has been accepted by the Company may be cancelled by the Buyer except with the agreement in writing of the Company and on terms that the Buyer shall indemnify the Company in full against all loss (including without prejudice to the generality of the foregoing loss of profit), costs (including without prejudice to the generality of the foregoing the cost of all labour and materials ordered, whether used or unused), damages, charges and expenses incurred by the Company as a result of cancellation.
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the address set out in the Company’s order acknowledgement but the Buyer shall be responsible for unloading the Goods at the Buyer’s premises.
4.2 The Buyer shall take delivery of the Goods within 14 days of the Company giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by the Company for delivery of the Goods or performance of the Services are intended to be an estimate and time for delivery or performance shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time. The Company shall not be liable for any delay in delivery of the Goods or performance of the Services or failure to deliver the Goods or perform the Services that is caused by a Force Majeure Event or the Buyer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or performance of the Services.
4.4 The Company shall not be liable for any loss of profits, loss of business, loss of sales, loss of revenue, depletion of goodwill, loss of business opportunity or any indirect or consequential loss caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.5.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence); and
4.5.2 the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.6 Unless otherwise expressly agreed in writing the Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for unloading the Goods.
4.7 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.8 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5. Non-delivery and Non-performance
5.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods or non-performance of the Services shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods or Services.
6.1 Subject to clause 4.5.1, the Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
6.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company;
6.3.5 notify the Company immediately if it becomes subject to any of the events listed in clauses 6.5 and 15.1; and
6.3.6 give the Company such information relating to the Goods as the Company may require from time to time.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
6.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
6.4.2 any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
6.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
6.5.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
6.5.3 the Buyer encumbers or in any way charges any of the Goods.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.8 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.
6.9 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 Company, but if the Buyer does so all moneys owing by the Buyer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
6.10 For the avoidance of doubt, the Intellectual Property shall remain at all times the property of the Company.
6.11 Until such time as the property in the Goods passes to the Buyer the Company, its employees or agents shall be entitled at any time to require the Buyer to deliver up the Goods to the Company, 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.
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods and Services shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery.
7.2 Unless otherwise agreed by the Company in writing the price for the Goods and Services shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage, insurance and installation all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods and/or Services.
8.1 The Company shall be entitled to invoice the Buyer for the price on or at any time after delivery unless in the case of Goods which are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Company shall be entitled to invoice the Buyer for the price at any time after the Company has notified the Buyer that the Goods are ready for collection or (as the case may be) the Company has tendered delivery of the Goods.
8.2 The Buyer shall pay the price within 30 days of the date of the Company’s invoice, and the Company shall be entitled to recover the price notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer.
8.3 Time for payment shall be of the essence.
8.4 No payment shall be deemed to have been received until the Company has received cleared funds.
8.5 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.6 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.7 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the statutory rate payable under the Late Payment of Commercial Debts (Interest) Act 1998 accruing on a daily basis until payment is made, whether before or after any judgment.
9.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
9.2 The Company warrants that (subject to the other provisions of these conditions) on delivery and for a period of 12 months form the date of delivery the Goods shall:
9.2.1 conform in all material respects with their descriptions; and
9.2.2 be free from material defects in design, material and workmanship.
9.3 The Company shall not be liable for a breach of any of the warranties in condition 9.2 if:
9.3.1 the Buyer fails to give written notice of the defect to the Company within three days of the time when the Buyer discovers or ought to have discovered the defect;
9.3.2 the Buyer makes any further use of such Goods after giving a notice in accordance with clause 9.3.1;
9.3.3 the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trace practice;
9.3.4 the defect arises as a result of the Company following any drawing, design or Goods specification supplied by the Buyer;
9.3.5 the Buyer alters or repairs such Goods without the written consent of the Supplier;
9.3.6 the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal working conditions;
9.3.7 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards; or
9.3.8 the price for the Goods and/or Services has not been paid by the due date.
9.4 Subject to condition 9.3, if any of the Goods do not conform with the warranties in condition 9.2 the Company shall at its option repair or replace such Goods (or the defective part) or reduce the Contract price at the pro rata Contract rate or issue a credit note at the pro rata Contract rate, or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company.
9.5 If the Company complies with condition 9.4 it shall have no further liability for a breach of any of the warranties in condition 9.2 in respect of such Goods.
9.6 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms .
10. Limitation of liability
10.1 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.2 Nothing in these conditions excludes or limits the liability of the Company:
10.2.1 for death or personal injury caused by the Company’s negligence or the negligence of its employees, agents or sub-contractors; or
10.2.2 for breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
10.2.3 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
10.2.4 for fraud or fraudulent misrepresentation.
10.3 Subject to clause 10.2:
10.3.1 the Company shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any:-
10.3.1.1 loss of profit; or
10.3.1.2 loss of goodwill; or
10.3.1.3 loss of business; or
10.3.1.4 loss of business opportunity; or
10.3.1.5 loss of anticipated saving; or
10.3.1.6 special, indirect or consequential damage suffered by the Buyer that arises under or in connection with the Contract.
10.3.2 the Company’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract whether in contract, tort (including negligence) breach of statutory duty, or otherwise shall in no circumstances exceed the price of the Goods and/or Services.
10.4 This clause 10 shall survive termination of the Contract.
11.1 The Company may assign the Contract or any part of it to any person, firm or company.
11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
12. Force majeure
The Company shall not be liable to the Buyer as a result of any delay or failure to perform its obligations under the Contract as a result of circumstances beyond the reasonable control of the Company (a “Force Majeure Event”) including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), failure of a utility service or transport network, malicious damage or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 180 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
13.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
13.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.6 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts.
14.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email or fax:
14.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
14.1.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
14.2 Communications shall be deemed to have been received:
14.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
14.2.2 if delivered by hand, on the day of delivery; or
14.2.3 if sent by email or fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
15. Insolvency of the Buyer
15.1 This clause applies if:-
15.1.1 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
15.1.2 an encumbrancer takes possession, or a receiver is appointed, any of the property or assets of the Buyer; or
15.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
15.1.4 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
15.2 If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries or performance of the Services 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.