TERMS AND CONDITIONS OF SALE OF GOODS AND SERVICES
1 Definitions
1.1 In the terms and conditions of sale of goods and/or services (Conditions) (unless the context
otherwise requires):
Seller means Bear Metals Limited (11067204) trading from Highcliffe Industrial Estate, Bruntcliffe Lane, Leeds, LS27 9LR
Buyer means the person, firm or company placing an order with the Seller
Contract means the contract for the supply of Goods and/or Services formed by the Seller's acceptance (which, however made or communicated, shall be deemed to be made subject to these Conditions) of the Buyer's order
Goods means all those goods and materials which are the subject of the Buyer's order and which are to be supplied to the Buyer by the Seller under these Conditions
Services means all assistance provided by the Seller to the Buyer in relation to the Goods including without limitation the measuring and designing of the Goods to fit the Buyer's
premises and the fitting and installation of the Goods
1.2 Words in the singular include the plural and vice versa, references to any gender shall include the others and references to legal persons shall include natural persons and vice versa.
1.3 The headings in these Conditions are intended for reference only and shall not affect their construction.
2 Formation of Contract
2.1 All Goods and/or Services sold by the Seller are sold subject to these Conditions and these Conditions shall be the sole terms and conditions of any sale by the Seller to the Buyer.
Terms and conditions on the Buyer's order form or other similar document shall not be
binding on the Seller and the placing of an order for or the acceptance of the Goods and/or Services by the Buyer shall indicate unqualified acceptance of these Conditions.
2.2 No representative, agent or sales person has the Seller's authority to vary, amend or waive any of these Conditions on behalf of the Seller and no amendment or addition to any of these Conditions shall be deemed to have been accepted unless accepted in writing by the Seller.
3 Estimates
3.1 The prices, quantities and delivery times stated in any estimate are not binding on the Seller. They are commercial estimates only which the Seller will make reasonable efforts to achieve.
3.2 Notwithstanding that the Seller may have given a detailed estimate, no order shall be binding on the Seller unless and until it has been accepted in writing by the Seller.
4 Specifications
All drawings, photographs, illustrations, dimensions, weights and other technical information
and particulars for the Goods and /or Services and any sample books are given by the Seller
in the belief that they are as accurate as reasonably possible but are not to be treated as
binding or as forming part of the Contract.
5 Orders and delivery
5.1 Orders are accepted by the Seller subject to the availability of Goods for delivery.
5.2 Once an order is accepted by the Seller, the Buyer cannot cancel the order.
5.3 Unless otherwise agreed, delivery of Goods within the UK (but excluding Isle of Wight,
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Anglesey, Isles of Scilly, the Hebrides and the island group of Orkney and Shetland) (the Mainland UK) to the Buyer's designated depot will be made at the cost of the Seller by any method of transportation regarded as suitable by the Seller at its discretion. Where any address other the Buyer's designated depot or an address outside the Mainland UK is specified by the Buyer, the Goods will be delivered at the cost of the Buyer.
5.4 Although the Seller will use all reasonable efforts to meet delivery dates, it shall not be liable to the Buyer for any loss or damage, whether direct, indirect or consequential if it is delayed
or prevented, in whole or in part, from delivering the Goods and/or Services.
5.5 Time of delivery shall not be of the essence.
5.6 If the Buyer refuses or fails to take delivery of the Goods on the date of delivery, the Seller will be entitled at its discretion to store the Goods at the risk of the Buyer and the Buyer shall in addition to the price payable under clause 7 pay all costs and expenses of such storage and
any additional costs of carriage incurred.
5.7 The Seller reserves the right to deliver in instalments at its discretion.
5.8 All Goods must be inspected by the Buyer immediately on delivery. If any Goods are damaged or lost or if there has been short delivery, the Buyer must endorse the consignment note accordingly and submit a detailed written claim to the carrier within 3 days of delivery of the Goods and supply a copy of such claim to the Seller within 7 days of delivery of the
Goods. The Buyer's signature on the consignment note without any such endorsement shall release the Seller from any liability in respect of damage or loss in transit or short delivery.
6 Risk
Except as otherwise provided in these Conditions, the risk of loss or damage to the Goods shall pass to the Buyer upon delivery of the Goods in accordance with clause 5.3.
7 Price
7.1 The price payable for the Goods and/or Services shall be as stated in the Seller's price list current at the date of despatch (or estimate relating to the design of the Goods and/or extent
of the Services) unless otherwise stipulated in writing by the Seller but the Seller reserves the right to alter its prices without prior notice to the Buyer.
7.2 The price is exclusive of the cost of delivery in accordance with clause 5.3 and exclusive of Value Added Tax, customs duties and all other taxes, duties and expenses in respect of the Goods and/or Services all of which shall be added to the price for the Buyer's account unless otherwise stipulated in writing by the Seller.
8 Payment
8.1 Unless otherwise agreed in writing, the Buyer shall make payment for the Goods and/or Services in pounds sterling 30 days following the end of the month in which the invoice is dated.
8.2 If payment is not made when due then the Seller may, without prejudice to its other rights, charge interest at an annual rate of 2 per cent above the current base rate of HSBC Bank Plc to be calculated on a day to day basis on the balance outstanding until payment is made in
full.
8.3 The Buyer shall not purport to set off or withhold any payments claimed or due to the Seller under this or any other contract.
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9 Title and lien
9.1 The Seller shall retain title to and ownership of the Goods until it has received payment in full of all sums due for all Goods and/or Services supplied to the Buyer. If payments received
from the Buyer are not stated to refer to a particular invoice the Seller may appropriate such payments to any outstanding invoice.
9.2 If any of the Goods owned by the Seller are attached to, mixed with or incorporated into any other goods not owned by the Seller so that the Goods in question are not separate from the resulting composite or mixed goods, then immediately upon manufacture all such composite
or mixed goods shall belong to the Seller absolutely and not by way of charge until the Goods and/or Services have been paid for in full or until the Seller recovers possession of and resells sufficient of the composite or mixed goods to discharge the purchase price in full and the Seller's costs recovered, any excess to be accounted for to the Buyer.
9.3 Until payment of the purchase price the Buyer shall be the bailee of the Goods for the Seller and the Goods shall be stored separately from any goods which belong to the Buyer or any third party, and shall be clearly marked and identifiable as being the Seller's property.
9.4 The Seller hereby licences the Buyer to sell, as the Seller's agent and bailee Goods which belong to the Seller. All monies received from any such sale shall be held on trust to settle
any sums due in respect thereof to the Seller and pay any balance to the Buyer. Such
monies shall be placed to the credit of a separate fiduciary bank account which shall not be permitted to become overdrawn and shall not be released to the Buyer until payment for the Goods and/or Services has been received.
9.5 If the Buyer fails to make any payment to the Seller when due, compounds with its creditors, executes an assignment for the benefit of its creditors, has a bankruptcy order against it or, being a company, enters into voluntary or compulsory liquidation or has an administrator or administrative receiver or receiver appointed over all or part of its assets or takes or suffers
any similar action in consequence of debt or becomes insolvent or if the Seller has
reasonable cause to believe that any of these events is likely to occur, the Seller shall have
the right, without prejudice to any other remedies:
(a) to enter without prior notice any premises where Goods owned by it may be, and to repossess and dispose of any Goods owned by it so as to discharge any sums owed
to it by the Buyer under this or any other contract,
(b) to require the Buyer not to resell or part with possession of any Goods owned by the
Seller until the Buyer has paid in full all sums owed by it to the Seller under this or
any other contract, and/or
(c) to withhold delivery of any undelivered Goods, stop any Goods in transit and cease
the performance of any incomplete Services.
Unless the Seller expressly elects otherwise, any contract between it and the Buyer for the supply of Goods and /or Services shall remain in existence notwithstanding any exercise by
the Seller of its rights under this clause 9 .
9.6 The Goods shall, once the risk has passed to the Buyer in accordance with clause 6 (Risk) or otherwise, be and remain at the Buyer's risk at all times unless and until the Seller has
retaken possession of them, and the Buyer shall insure accordingly.
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10 Warranty
10.1 The Seller warrants that the Goods will be free from material defects in materials and workmanship for a period of 5 years from the date of delivery and the Seller will at its option refund the purchase price of or repair or replace free of charge any Goods which its examination confirms are defective provided:
(a) the Buyer makes a full inspection of the Goods immediately upon delivery, (b) the Buyer notifies the Seller forthwith of any defects which it discovers,
(c) the Buyer has used the Goods in accordance with any instructions or recommendations of the Seller,
(d) the Goods have not been adjusted, altered, adapted or repaired by any party other than the Seller,
(e) the Goods are either made available to the Seller for inspection or returned to the Seller at the Buyer's own expense, as the Seller may request.
10.2 The Seller shall be liable for loss arising from death or personal injury resulting from the proven negligence of the Seller and for fraud or fraudulent misrepresentation.
10.3 Subject to clause 10.2, in no circumstances shall the Seller's liability to the Buyer for any breach of warranty, contract, tortious duty, statute, or regulation exceed the price paid for the Goods and/or Services with respect to which the claim is made.
10.4 Except as provided for in these Conditions, there are no warranties, express or implied, of merchantability or of fitness for a particular purpose, or of any other kind except as to title. In particular, to the extent permitted by law, all conditions and warranties which would otherwise be implied by statute or under the common law are hereby excluded.
11 Liability
11.1 The Seller shall under no circumstances be liable for any indirect, special or consequential loss (including loss of anticipated profit or third party claims) howsoever arising either from breach or non-performance of any of its obligations under the Contract or from the supply of
or intended use of the Goods or the performance of the Services, even if the Seller has been advised of the possibility of such potential loss, except that the Seller shall be liable for loss arising from death or personal injury resulting from the proven negligence of the Seller and for fraud and fraudulent misrepresentation and except that nothing in these Conditions shall have the effect of excluding or limiting liability under the Consumer Protection Act 1987 to a person who has suffered damage caused by a defective product, or to a dependent or relative of
such person.
11.2 All recommendations and advice given by or on behalf of the Seller to the Buyer as to the Services, methods of storing, using or applying the Goods, the purposes for which the Goods may be applied and the suitability of using the Goods in any manufacturing process or in connection with any other materials are given without liability on the part of the Seller.
11.3 The Seller makes no representation or warranty that use of the Goods does not infringe the rights of any third party and the Seller accepts no liability in this respect.
12 Intellectual Property Rights
The Buyer shall indemnify the Seller against all loss or damage suffered or incurred by the Seller as a result of any actual or alleged infringement of any third party intellectual property
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rights in connection with the receipt and use of any design or description or other materials supplied by the Buyer in relation to the Goods and/or Services.
13 Regulations and labelling
The Buyer shall be responsible for compliance with all relevant laws and regulations and the Buyer shall ensure that the Goods are at all times labelled in such a way as to ensure the safety which a person is entitled to expect from the Goods.
14 Termination
Should the Buyer make default in any payment or otherwise be in breach of its obligations to the Seller under the Contract or under any other contract with the Seller or compound with or execute an assignment for the benefit of its creditors or commit any act of bankruptcy or being a company enter into voluntary or compulsory liquidation or suffer a receiver or administrative receiver or administrator to be appointed over all or any part of its assets or take or suffer any similar action in consequence of debt or become insolvent or should the Seller have reasonable cause to believe that any of these events is likely to occur, the Seller may, by notice in writing to the Buyer, without prejudice to any other rights, forthwith suspend or cancel any uncompleted part of the Contract or stop any Goods in transit or cease the performance of the Services or require payment in advance or satisfactory security for further deliveries under the Contract.
15 Force majeure
The Seller shall not be liable to the Buyer for any loss or damage caused to or suffered by the Buyer as a direct or indirect result of the supply of the Goods and/or Services by the Seller being prevented, restricted, hindered or delayed in manufacturing, obtaining or delivering the Goods and/or Services by reason of any circumstances outside the control of the Seller including, without limitation, industrial action, circumstances affecting the provision of all or any part of the Goods and/or Services by the Seller's usual source of supply or delivery or by the Seller's normal route or means of delivery.
16 Waiver
The failure of the Seller to insist upon the strict performance of any of the terms and conditions of the Contract shall not be construed as a waiver of any such term or condition and shall in no way affect the Seller's right to enforce such provision later.
17 Severability
If any of the terms and conditions of the Contract (or part thereof) shall be found to be invalid, ineffective or unenforceable, the invalidity, ineffectiveness or unenforceability of such term or condition (or part thereof) shall not affect any other term or condition (or the other part of the term or condition of which such invalid, ineffective or unenforceable part forms part) and all terms and conditions (or parts thereof) not affected by such invalidity, ineffectiveness or unenforceability shall remain in full force and effect.
18 Governing law
The construction, validity and performance of the Contract shall be governed by English law and by entering into the Contract the parties submit to the jurisdiction of the English courts.
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