SCS Automation and Control Ltd , Standard Conditions of Sale of Goods and Supply of Services
1. Definitions: In these Conditions: “the Company” means SCS Automation and Controls Ltd. “the Customer” means any company, person, firm or individual or any agent thereof to whom the goods are sold or Services are supplied by the Company. “Goods” means all goods, materials, equipment, articles (including documents parts or accessories) supplied by the Company to the Customer whether in the form in which the same was delivered and whether or not combined or admixed with any other item or substance. “Services” means all advice given and statements made whether orally, in writing, by document, drawing, demonstration or in any other way whatsoever, acts and work done and any other services provided by the Company to the Customer.
2. Applicability of Conditions: The Company concludes contracts for the sale of Goods and the supply of Services subject only to these Conditions or as varied or qualified where appropriate by mutual agreement and these Conditions shall exclude any terms or conditions sought to be imposed by the Customer. No variation or qualification of these Conditions or of any contract shall be valid unless agreed in writing by a Director of the Company.
3. Quotations: and Estimates The Company’s quotations and estimates constitute invitations to treat and no contract between the Company and the Customer shall arise unless and until the Company has accepted the Customer’s official order placed on the basis of the Company’s quotation including any amendment thereto.
4. Representations: Unless the quotation contains a statement nominating an employee to act on behalf of the Company, no employee of the Company other than a Director of the Company is authorised to make any statement, warranty or representation as to the Goods. The Customer, therefore, shall not be entitled to rely or to seek to rely upon any statement, warranty or representation made by an employee or agent of the Company other than a Director or a nominated employee.
5. Prices: (i) Unless previously withdrawn all prices and quotations given by the Company are valid for a period of 30 days only from the date upon which the same be given unless a different period has been expressly specified in writing by the Company. (ii) Payment must be made promptly as agreed in the quotation or a) The Company reserves the right to increase the contract price by the amount of any increase occurring between costs prevailing at the date of quotation and costs prevailing at the date when the price becomes payable, together with an addition for profit calculated by applying to such increase in costs the ratio which the profit bore to the total costs in the original contract price. In this context costs shall mean costs incurred by the Company and shall include cost of supply, goods, services, labour, materials, transport, overheads (whether fixed or varied), taxes, customs duties, and all costs of whatsoever nature. b) The Company shall give notice in writing to the Customer of any such increase as aforesaid whereupon (subject to the provisions of the next following sub-clauses) the amount of such increase shall become due and payable by the Customer in like terms to the contract price. c) In the event of the Company giving notice in accordance with the preceding sub-clause hereof the Customer may within 14 days of receipt of such notice give counter notice to the Company disputing the amount of the increase claimed. Upon receipt of such counter notice the Company shall refer the matter to the Company’s then auditors who shall determine the correct amount of any increase hereunder and shall certify such amount in writing to both the Company and the Customer (where such certificate shall be final, binding and conclusive between the parties and not open to question in any way whatsoever). The amount so certified shall forthwith become due and payable by the Customer in like terms to the contract price. The giving of a counter notice shall in no way relieve the Customer of any obligation in respect of the payment of the contract price. d) The Company’s auditors proper costs in making the aforesaid determination shall be borne in equal shares by the Company and the Customer whose share thereof shall become due and payable by the Customer to the Company in like terms to the contract price. (iii) Unless otherwise expressly specified, the price of all Goods shall be ex-works and exclusive of V.A.T which will be chargeable at the rate prevailing at the date of despatch of the Goods and/or performance of the Services as the case may be and of all other taxes of whatever nature imposed or to be imposed upon sales whether existing at the date of the quotation or imposed thereafter. (iv) The price(s) for Goods quoted does not include the cost of trade packing designed subject to reasonable handling to ensure safe arrival at any destination within the United Kingdom and unless otherwise expressly specified does not include the cost of carriage, delivery or insurance which if requested by the Customer shall be at the Customer’s sole cost.
6. Cancellation: Cancellation by the Customer of any order shall only take place with the Company’s written agreement and on such terms as the Company may agree. A restocking fee of up to 100% may apply depending on original manufacturer.
7. Despatch Delivery and Testing (i) Delivery of the Goods to the Customer shall be deemed to occur and the risk of loss or damage of any kind in the Goods shall pass to the Customer on whichever of the following events occur earlier. a) Collected by or on behalf of the Customer or by a carrier for despatch to the Customer (whether or not such carrier is the Company’s agent or servant) b) Seven days following notice being given by the Company to the Customer that the Goods are ready for collection or despatch c) Seven days following notice being given by the Company to the Customer that the Goods would have become available for collection but for some act or omission for which the Customer or its employees or agents are responsible or for which neither the Company nor its employees nor its agents are wholly responsible d) In any case where the Company has undertaken to deliver the Goods to the premises of the Customer or to any premises nominated by the Customer, if the Company has delivered the Goods as near to such premises as can be achieved in the circumstances existing, upon the day upon which such delivery is attempted. (ii) In any of the circumstances referred to in paragraph (i) hereof the Company shall be under no further liability as regards the delivery of the Goods but the Goods shall thereupon be at the sole risk of the Customer. If the Goods shall still remain on the Company’s premises the Customer shall forthwith remove the same without delay. (iii) The Customer shall (save where the Goods are to be tested at the Company’s premises pursuant to (iv) below or where in the Company’s opinion no examination of the Goods should be made until the same are to be used) carefully examine the Goods on receipt of the same and shall by written notice to be received by the Company within 7 days of receipt of the Goods notify the Company of any defects reasonably discoverable on careful examination. In the absence of receipt of such notice the Company shall be discharged from all liability in respect of such defects. (iv) In the event it is agreed that the Goods shall be tested by the Company in the presence of the authorised representatives of the Customer at the Company’s premises the following provisions shall apply. a) The Company shall give the Customer a minimum of 14 (fourteen) days notice (or such other period as may have been previously agreed) of the date(s) on which the Works Acceptance Tests of the Goods will commence and will agree such date(s) with the Customer provided commence is no later than seven days after the first possible date to enable the said representatives to witness such tests, which will be carried out in accordance with the Test Schedule agreed between the Company and the Customer. Should the authorised representatives fail to attend on the appointed date(s) the Company shall be entitled to carry out the tests as if the said representatives were present and deliver the Goods which have passed the said tests. Upon the written request by the Customer the Company shall provide to the Customer a copy of the test results. b) Unless otherwise agreed the Test Schedule referred to in (a) above shall be established by the parties no later than 30 days or such other period as the contract specifies from the date of acceptance by the Company of the Customer’s order or instructions to proceed provided that if at the request of the said representatives the commencement of the said tests is delayed or additional tests are carried out (unless such additional tests are considered by the Company to be necessary to enable the Goods to meet the agreed specification). Any additional charges incurred by the Company in respect of such delay or additional tests shall be added to the contract price and paid by the Customer to the Company and the time for delivery by the Company shall be extended accordingly. c) Travelling and subsistence expenses of the said representatives shall be for the account of the Customer. d) Where the contract so requires the said tests, which shall be deemed to be the final acceptance tests, shall be repeated after installation on site, and the provisions set out in (b) and (c) above shall apply to any delay or additional tests which result from the request of the Customer. e) On satisfactory completion of the said tests, whether on the Company’s premises or on the Customer’s site or that of his customer, the Company shall issue a Site Visit Form which shall be signed by the authorised representative of the Customer and shall be final and conclusive proof that the Goods have been supplied by the Company and accepted by the Customer in full accordance with the terms hereof and the Customer shall not thereafter make any claim against the Company in respect of the design quality or performance thereof unless the customer can prove that the defect complained of could not have been revealed by the said tests in which event paragraphs 13
8. Time for and Form of Delivery: (i) The Company will use reasonable commercial endeavours to deliver the Goods and/or to perform Services in accordance with any dates specified for delivery or performance but any such dates are stated by way of general information only and in the event of failure to despatch or deliver or perform within such times for any cause whether within or outside the Company’s reasonable control, the same shall not be a breach of repudiation of the contract and the Company shall not be liable for any loss or damage suffered by the Buyer as a result of such delay. (ii) a) If the contract does not otherwise provide the Company shall be entitled to deliver Goods by single delivery or by instalments at its option. b) If the contract provides for delivery by instalments or the Company so elects, each instalment shall be deemed to be the subject of a separate contract on these conditions and without prejudice to sub-paragraph (i), hereof non-delivery or delay in delivery shall not affect the balance of the contract or entitle the Customer to terminate the same. (iii) In the event that the Goods shall not have been collected by or on behalf of the Customer or by a carrier for despatch to the Customer within 8 working days of the Company’s written notice pursuant to paragraph 7 (i)(b) hereof then the Company may at any time thereafter send to the Customer a further notice notifying the Customer of the Company’s intention to sell the same after the expiration of a period of not less than 14 days from the date on the notice and may then proceed to effect such sale on a forced sale basis unless the Customer can demonstrate to the satisfaction of the Company that the Customer has been prevented from removing the Goods by events beyond its control. The Customer shall be liable for the Company’s charges and expenses for the sale and for the storage of the Goods (which shall be at the risk of the Customer) pending their sale hereunder or delivery to the Customer.
9. Performance: Prevented or Hindered (i) The Company shall not be liable for any delay or failure in carrying out its obligations which is caused wholly or partly by reason of act of God, delay in transportation, labour disputes, fire, flood, war, accident, Government action, inability to obtain adequate labour, materials, manufacturing facilities, or energy, or any other cause beyond the Company’s control or that of its servants or agents, and if the delay or failure has continued for a period of 3 months then either party may give notice in writing to the other terminating the contract and on such termination the Customer shall forthwith pay to the Company an amount equal to the costs and expenses incurred by the Company in connection with the contract but shall be entitled to be repaid by the Company any excess over such amount which may have been paid by the Customer as an advance payment for the Goods not delivered to the Customer at the date of termination. (ii) In the event of any work by the Company being suspended as a result of instructions given by the Customer or an omission by the Customer to give adequate instructions, the Customer shall indemnify the Company in respect of any cost incurred by the Company whether flowing directly or indirectly from the Customer’s instructions or failure to give adequate instructions.
10. Payment: Terms for payment will be stated on quotation. Credit terms of 30 days from date of invoice are available subject to satisfactory references and agreed in writing . Otherwise goods must be paid in full prior to shipment. The payment should be made payable to SCS Automation and Control Ltd by cheque, credit transfer or BACS. If you fail to make any payment on the due date then, without prejudice to any other right or remedy available to us, we shall be entitled to: (i) Cancel the order or suspend any further deliveries to you (ii) Appropriate any payment made by you, to such of the Goods (or the Goods supplied under any other order between us) as we may think fit (notwithstanding any purported appropriation by you); and (iii) Charge you interest (both before and after any judgement on the amount unpaid, at the rate of 8 per cent per annum above the Bank base rate from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
11. Passing of Risk and Property (i) Risk of loss of or damage to the Goods shall pass to you at the time of delivery. The property in the Goods shall not pass to you until all sums due or owing to us by you on any account have been paid , and until payment the following provisions of this paragraph shall apply. Except where full payment is made in cash, the whole of the price shall not be treated as paid until any cheque or other instrument of payment given by you has been met on presentation or otherwise honoured in accordance with its terms. If you default in the punctual payments of any sum owing to us then we shall be entitled to the immediate return of all Goods sold by us to you in which the property has not passed to you, and you hereby irrevocably authorise us and our employees and agents to recover the Goods and to enter any of your premises for that purpose. Demand for or recovery of the Goods by us shall not of itself discharge either your liability to pay the whole of the price and take delivery of the Goods or our right to sue for the whole of the price. (ii) Until full payment has been made of the price of the Goods sold or supplied: a) The property in the Goods shall not pass to the Customer and the Customer shall keep the Goods fully insured as bailee for the Company (returning the same to the Company upon request) b) The Customer shall be at liberty to sell the Goods in the ordinary course of business in the name of the Customer and as principal and not as agent for the Company notwithstanding the fact that title to the Goods has not then passed to the Customer but the benefit of such contract or sale and the proceeds of any such sale shall belong to the Company absolutely c) The Customer shall keep and safely store the Goods separately and in such manner that they can be readily identified as the property of the Company. d) In the event of the determination or repudiation of the contract (howsoever occurring) the Company is hereby irrevocably authorised to enter on to the premises of the Customer and repossess the Goods and any other Goods in the Customer’s possession the property in which is vested in the Company e) The Customer will keep the Goods free from and will indemnify the Company against any charge, lien or other encumbrance thereon f) In the event of the total or partial destruction of the Goods while the same are the property of the Company the Customer shall apply any insurance monies received by the Customer in respect of such loss or destruction in payment to the Company of the price of the Goods and pending such payment shall hold such moneys on trust for the Company.
(iii) Should the Goods (or any of them) be converted into a new product, whether or not such conversion involves the admixture of any other Goods or things whatsoever and in whatever proportions, the conversion shall be effected by the Customer solely as agent for the Company and the Company shall have the full legal and beneficial ownership of the new product and sub-paragraph (i) above shall apply mutatis mutandis
12. Drawings:, Specifications, etc. (i) Where the goods to be supplied are standard products and unless the contract specifies otherwise, all descriptions, drawings, illustrations, particulars of weights and measures or details or specifications or other descriptive matter supplied by the Company are approximate. (ii) The Goods will be in accordance with the Company’s or the manufacturer’s specification at the time of manufacture and any earlier specifications, descriptions, drawings, illustrations, particulars as to weights and measures, detail or other descriptive matter shall not form part of the description of the Goods or services supplied so that the Company shall not be under any liability in respect thereof.
13. Warranty and Limitation of Liability: (i) The Company agrees to replace or at its option repair free of charge Goods or any part thereof which are found to be defective through faulty materials, workmanship or its design. The Company may at its own expense inspect defective Goods at the premises of the Customer or require the Customer at the Customer’s expense to send such Goods to the Company. Where the Company is liable hereunder to repair or replace the Goods the Company shall bear the cost of returning the same to the Customer. (ii) The above warranty shall apply provided that: a) The Customer gives written notice within 6 months or such other period as the contract specifies of delivery or performance or in the case of items which have been replaced or repaired by the Company within 3 months or such other period as the contract specifies of such replacement or repair respectively after which any claim in respect thereof shall be absolutely barred b) The part or parts of the Goods which are proven to be defective in materials, workmanship or design are part or parts manufactured by or manufactured from components manufactured by the Company and not by suppliers to or sub-contractors of the Company c) Should the goods have been manufactured by a third party and only supplied by the Company then the liabilities, limitations and warranties will be as per the original manufacturers Terms and Conditions. (iii) The above warranty shall not apply: a) If the Goods have been used in a manner contrary to any instructions accompanying them; b) If the Goods have been subjected to other improper use c) If the Goods were manufactured according to a design made, furnished or specified by the Customer for which the Company has disclaimed responsibility in writing. (iv) All illustrations, preliminary drawings, specifications, descriptions, statements and information of whatsoever nature by whatsoever means wheresoever appearing shall be deemed not to constitute any material representation whatsoever by the Company and further the Customer shall be deemed not to have relied thereupon and further no purpose for which the Goods or any of them are intended to be used shall be deemed to be made known to the Company and the Company shall in no circumstances be liable in respect thereof unless the Company shall have been advised in writing of any matter relied upon or proposed to be relied upon by the Customer or of any purpose for which the Customer intended to use the Goods or any part thereof and accordingly the Customer is advised in no circumstances to place or to seek to place reliance upon any such matter without having so advised the Company of such intention. (v) Such replacement repair or remedial services shall be the absolute limit of the Company’s liability and the Company shall not be liable in any circumstances whatsoever for loss or damage of any kind suffered by the Customer or by any third party howsoever or by whomsoever caused unless the same shall relate to personal injury or death and only then if the same shall arise out of the Company’s negligence. Save as aforesaid the Company shall be under no liability whatsoever in regard to Goods or services or replacement whatsoever in regard to Goods or services or replacement repair or remedial services whether manufacture or performance be by itself or of any other persons and any condition or warranty which might otherwise be implied or incorporated by the contract or by reason of Statute or Common Law is hereby excluded, to the extent that such exclusion is permitted by law. (vi) Save as aforesaid the Company shall in no circumstances be liable: a) For any consequential or special loss or damage or claim by the Customer including without limitation, delay, retention, loss of production, loss of profit, loss of time, charges or liability to third parties; and the Customer shall fully and effectually indemnify the Company against any liability of the Company to any third party arising out of or in connection with the use of the Goods by the Customer, the Customer’s servants or agents or any other party. b) For any loss or damage in excess of the contract price (or in the case of a defect in the part only then the cost of repair or replacement of such part) and these limitations will apply (even in the case of breach of a fundamental term or repudiation by the Company) and even if further performance of the contract is frustrated. (vii) In respect of parts or components supplied by the Company but not of the Company’s own manufacture proving to be defective in materials, workmanship or design. The Company will if requested by the Customer give all reasonable assistance to the Customer to enable the Customer to enforce any guarantee given to the Company by the manufacturer of such parts or components.
14. Responsibility for Services: (i) Save as it provided in sub-paragraph (ii) hereof, the Company shall not be under any liability for any loss or damage of whatsoever nature howsoever arising from any Services rendered by the Company (whether in whole or in part properly or otherwise) or by an omission by the Company howsoever arising to supply Services. (ii) Sub-paragraph (i) hereof shall not apply:- a) In the event that the Customer sustains loss as a direct result of any wilful misconduct on the part of any director of the Company whilst acting as a director thereof:- b) To such part of any loss or damage arising out of any one contract as equals the charge payable to the Company for performing such contract or (if the contract comprised the supply of both Goods and Services) to the proportion of the charge reasonable attributable to the supply of Services under such contract.
15. Radio-active and other Dangerous Goods: If any Goods specified by the Customer and supplied or to be supplied by the Company shall consist of or incorporate any radio-active material or any other inherently dangerous matter of whatsoever nature, the Customer shall indemnify the Company in respect of all loss and damage suffered by the Company arising out of or due to the presence of such matter in the Goods whether or not any such loss or damage or any part thereof be otherwise caused or contributed to by or attributable to any act, neglect or default of the Company or any of its servants or agents. 16. Installation and Erection Where the Company specifically undertakes to perform works of installation or erection or is on the premises of the Customer, for any other purpose connected with the contract then (unless otherwise specifically provided):- (i) The Customer shall be responsible for the unloading of materials and machines as delivered and for providing a suitable place for storage for the plant from its delivery until the commencement of erection. The place of storage shall be convenient and adjacent to the erection site. (ii) The Customer will at his own expense provide adequate and suitable foundations, fixings, buildings, lifting tackle, cranes and scaffolding and such other structures or equipment, as the Company may additionally require water and lighting facilities for the use of the Company its servants or agents on the site and continuous means of access thereto and clear passage for all goods, together with adequate protection for all materials and equipment which shall be at the Customer’s sole risk from the time of delivery. In the event of delay in completion and increased cost to the Company due to default by the Customer in any obligation hereunder the price shall be increased by the amount of such increased cost. All unskilled labour necessary for erection will be supplied by the Customer at his own risk and expense acting on the instructions of the Company’s engineer. (iii) If previously agreed in writing by the Company, the Company shall make available an engineer to attend upon a trial run immediately after the erection or installation shall be completed but in the event of it not being possible through no fault of the Company to have a trial run immediately on completion of erection or installation; the Company reserves the right to withdraw its engineer until such time as the trial run can take place, and the customer shall reimburse the Company for the additional charges, which the Company may have reasonably incurred as the result of the delay as aforesaid.