NORBAR TORQUE TOOLS LTD - TERMS AND CONDITIONS OF SUPPLY
1. INTERPRETATION AND APPLICATION OF TERMS
1.1 In these conditions the following words have the following meanings:
“the Buyer” means the person(s), firm or company who purchases the Goods from the Company;
“the Company” means Norbar Torque Tools Limited (380480), Beaumont Road, Banbury, Oxon, OX16 1XJ;
“Contract” means the contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions;
“Delivery Point” means the address within the UK mainland which is notified to the Company as the place for delivery of the Goods;
“Engineer to Order Goods” means any non-standard Goods specifically designed, modified and/or made for the Buyer or to the Buyer’s specification;
“Goods” means any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2 Subject to any variation under condition 1.4 the Contract will 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).
1.3 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such a document being referred to in the Contract.
1.4 These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods will have no effect unless expressly agreed in writing and signed by an authorised representative of the Company. The Buyer acknowledges that it has not relied on and will have no remedy in respect of any statement, promise or representation made or given by or on behalf of the Company which is not set out in this Contract. Nothing in this condition will exclude or limit the Company’s liability for fraudulent misrepresentation.
1.5 Each order or acceptance of a quotation for Goods by the Buyer from the Company will be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions and no order placed by the Buyer will be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or the Company delivers the Goods to the Buyer, whichever occurs first.
1.6 Any quotation is given on the basis that no Contract will come into existence until the Company despatches an acknowledgement of order or delivers the Goods 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 or amended it.
2.1 The description of the Goods will be as set out in the Company’s catalogue or other published specification current at the time that the relevant order is accepted by the Company or, in the case of Engineer to Order Goods, as specified in the relevant quotation.
2.2 The Company reserves the right to make any changes to the specification of the Goods (including Engineer to Order Goods) which are required to conform with any applicable statutory or EC requirements or which do not materially affect their quality or performance. The Buyer will not be permitted to reject Goods and the Company will have no liability to the Buyer in respect of any failure of the Goods to comply with any specification in these circumstances. If the departure from the specification is material and it is not required to conform with any applicable staturory or EC requirement, conditions 7.4 and 7.5 will apply.
2.3 The Buyer acknowledges that all intellectual property rights in the Goods (including Engineer to Order Goods) and in any novel combinations or applications of the Goods (whether as a kit, system or otherwise) belong solely to the Company and, to the extent that any such rights do not automatically vest in the Company by operation of law, hereby assigns to the Company all such rights. The Buyer will take any action and execute any document reasonably required by the Company to give full effect to this condition.
3.1 In the case of sales within the UK mainland, delivery will take place:
a) if the Goods are to be collected, on delivery to the Buyer or to the Buyer’s named carrier at the Company’s place of business; and
b) in all other cases, on delivery to the Delivery Point.
In the case of sales outside the UK mainland (including non-mainland UK) sales will be delivered FCA Company's premises (INCOTERMS 2010 edition), except where otherwise agreed in writing.
3.2 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery will not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
3.3 If for any reason the Buyer will not 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 then, without prejudice to any other right or remedy available to the Company:
a) risk in the Goods will pass to the Buyer;
b) the Goods will be deemed to have been delivered; and
c) the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
3.4 The Company may, at its discretion, accept returns of Goods ordered in error or no longer required, subject to the payment of a handling charge of 15% of the order value (excluding VAT), except that:
a) Production ‘P’ type wrenches will not be accepted for return;
b) Goods supplied with a UKAS accredited calibration certificate will be subject to a recalibration charge in addition to the handling charge;
c) Engineer to Order Goods may be charged for up to 100% of full price.
Goods returned for credit will only be accepted if they are returned in the original packaging, in a new, unused condition, carriage paid within 30 days after the despatch date.
4. NON DELIVERY
4.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business will be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
4.2 The Company will not be liable for any non delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company within 14 days of the date when the Goods would, in the ordinary course of events, have been received.
4.3 Any liability of the Company for non delivery of the Goods will 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.
5.1 The Goods are at the risk of the Buyer from the time of delivery.
5.2 Ownership of the Goods will 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 the Goods and all other sums which are or which become due to the Company from the Buyer on any account.
5.3 Until ownership of the Goods has passed to the Buyer, the Buyer will hold all Goods on a fiduciary basis as the Company’s bailee and the Company will be entitled at any time:
a) to require (at no cost to the Company) that the Goods are stored separately and clearly marked in such a way that they will readily be seen to be the property of the Company; and/or
b) to require the Buyer to deliver up the Goods or any part of them to the Company and if the Buyer refuses to do so, to immediately repossess them; and/or
c) to enter any premises or vehicle (by its employees or agents and in the case of premises, with or without vehicles) where Goods still owned by the Company are stored or reasonably thought to be stored in order to inspect and/or repossess them.
5.4 The Company will be entitled to recover payment for the Goods ordered notwithstanding that ownership of the Goods has not passed from the Company.
5.5 The Buyer may resell the Goods before ownership has passed to it providing that any such sale is made in the ordinary course of its business at full market value.
5.6 Until ownership of the Goods has passed to the buyer, the Buyer’s right to possession of the Goods will terminate immediately if:
a) the Buyer is made bankrupt or petitions for his own bankruptcy, or has a receiver, administrative receiver or administrator appointed over all or any of its assets or undertaking or, other than for the purposes of a solvent amalgamation or reconstruction, enters into liquidation, enters into any composition or arrangement with or for the benefit of its creditors or ceases to carry on business; or
b) the Buyer fails to observe or perform any of its obligations under the Contract or any other contract between the Company and the Buyer; or
c) the Buyer encumbers or in any way charges any of the Goods.
5.7 On termination of the Contract for any reason, the Company’s rights under this clause 5 will remain in effect.
6. PRICE AND PAYMENT
6.1 Unless otherwise agreed by the Company in writing the price for the Goods will be the price set out in the Company’s price list current as at the date of delivery or deemed delivery of the Goods.
6.2 The price for the Goods will be exclusive of any value added tax which the Buyer will pay in addition when it is due to pay for the Goods. The price for the Goods includes the cost of delivery if the order (i) is for delivery on Monday to Friday (inclusive) within the UK mainland to the Buyer’s usual Delivery Point using the Company’s usual delivery method and (ii) has a value of over £100.00 (excluding VAT). In all other cases, the cost of delivery will be charged in addition and will be due for payment at the same time as payment for the Goods is due.
6.3 For customers holding an account with the Company, payment of the price for the Goods is due within the agreed payment terms for that account. If any amount payable is not made within 30 days after the due date in accordance with the terms of the account, Norbar may withdraw credit facilities. For customers who do not have an account with the Company, or from whom credit facilities have been withdrawn, payment is due at the time the order is placed and may be tendered by cheque or credit card. In all cases, payment must be in pounds sterling (except where otherwise agreed in writing).
6.4 Time for payment will be of the essence.
6.5 No payment will be deemed to have been received until the Company has received cleared funds.
6.6 All payments payable to the Company under the Contract will become due immediately upon termination of this Contract notwithstanding any other condition of the Contract or any other arrangement or agreement between the parties.
6.7 The Buyer will make all payments due under the Contract 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.
6.8 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment.
7. LIABILITY OF THE COMPANY
7.1 The Company warrants that, subject to the other provisions of these Conditions upon delivery, and for a period of 12 months after the date of delivery, the Goods will:
a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
b) comply in all material respects with the specification for them as set out in the Company’s catalogue or other published specification current at the time that the order for the Goods was accepted by the Company.
7.2 The Company will not be liable for a breach of any of the warranties in condition 7.1 unless:
a) the Buyer gives written notice of the defect to the Company within 14 days of the time when the Buyer discovers or ought to have discovered the defect; and
b) the Buyer returns the defective Goods properly packed, carriage paid to the Company’s premises at the address given in condition 1.1.
7.3 The Company will not be liable for a breach of the warranties in condition 7.1 if:
a) the Buyer makes any further use of the Goods after giving such notice; or
b) the Goods have been misused, mishandled, overloaded, amended, modified or repaired in any way by the Buyer or its customers, or used for any purpose other than that for which they were designed; or
c) the defect is due to fair wear and tear or arises because the Buyer or its customer 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 trade practice.
7.4 Subject to conditions 7.2 and 7.3, if any of the Goods do not conform with any of the warranties in condition 7.1, the Company will at its option repair or replace such Goods (or the defective part of them) or refund the price of such Goods at the pro rata Contract rate.
7.5 If the Company complies with condition 7.4, it will have no further liability for a breach of any of the warranties in clause 7.1 in respect of such Goods.
7.6 Except as provided in condition 7.1, the Company makes no representation or warranty, whether express or implied, as to the quality or fitness for purpose of the Goods and all warranties, conditions and other terms which may be implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
7.7 Nothing in this Contract excludes or limits the liability of the Company for:
a) death or personal injury caused by the Company’s negligence; or
b) under section 2(3) of the Consumer Protection Act 1987; or
c) for fraud or fraudulent misrepresentation; or
d) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 7.8
7.8 Subject to 7.7:
a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Contract will be limited to the price of the Goods; and
b) the Company will not in any event be liable to the Buyer for any loss of profit, loss of business or depletion of goodwill, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with this Contract.
7.9 The Buyer acknowledges that the price of the Goods has been calculated on the basis that the Company excludes and limits its liability in accordance with condition 7.8.
7.10 Where the Goods are sold under a consumer transaction the statutory rights of the Buyer are not affected by these Conditions.
8. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials or components.
Any notice to be given under this Contract will be in writing and will be sent by first class mail within the UK, or by air mail, or by fax; in the case of the Company to the address set out in condition 1.1 and in the case of the Buyer to the Delivery Point or such other address or fax number as the Buyer may from time to time notify to the Company for this purpose in accordance with this condition. Notices sent as above will be deemed to have been received 3 working days after the date of posting (in the case of mail within the UK), or seven working days after the date of posting (in the case of air mail), or on the next working day after transmission (in the case of faxed messages) but only if a transmission report is generated by the sender’s fax machine recording error free transmission of all pages to the correct fax number.
10.1 The parties to the Contract do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it, except that any member of the group of companies whose holding company is Norbar Torque Tools Holdings Ltd may directly enforce any term of the Contract.
10.2 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.
10.3 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 or unenforceable it will to the extent of such illegality, invalidity, voidness, voidability or unenforceability be deemed severable and the remaining provisions of the Contract and the remainder of such provision will continue in full force and effect.
10.4 The Buyer will not be entitled to assign the Contract or any part of it without the prior written consent of the Company. The Company may assign the Contract or any part of it or sub-contract any or all of its obligations under the Contract to any person, firm or company.
10.5 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
10.6 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
10.7 The formation, existence, construction, performance, validity and all aspects of the Contract will be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.