NORBAR TORQUE TOOLS LTD CONDITIONS OF SALE
1. INTERPRETATION AND APPLICATION OF TERMS
1.1 In these Conditions the following words have the following meanings:
“Contract” means the contract between Norbar and the Customer for the sale and purchase of the Goods and/or Services, incorporating these Conditions, the Order and the Order Acknowledgement;
“Customer” means the person(s), firm or company who purchases Goods and/or Services from Norbar;
“Customer Equipment” means equipment belonging to the Customer which is the subject of Services to be carried out under a Contract;
“Delivery Point” means the address within the UK mainland which is notified to Norbar as the place for delivery of the Goods and/or Customer Equipment;
“Engineer to Order Goods” means any non-standard Goods specifically designed, modified and/or made for the Customer or to the Customer’s specification;
“Goods” means the goods set out in the Order to be supplied by Norbar to the Customer (including any part or parts of them);
“Norbar” means Norbar Torque Tools Limited (380480), whose registered office address is at Wildmere Road, Banbury, Oxon, OX16 3JU;
“Order” means the order for the Goods and/or Services placed on Norbar by the Customer;
“Order Acknowledgement” means the acknowledgement of Order issued by Norbar to the Customer;
“Services” means the services set out in the Order to be performed by Norbar for the Customer.
1.2 Subject to any variation under Condition 1.4 the Contract will be on these Conditions, the Order and the Order Acknowledgment to the exclusion of all other terms and conditions. They supersede any previously issued terms and conditions of supply. If there is any discrepancy between these Conditions, the Order and the Order Acknowledgement, the latter will prevail to the extent necessary to resolve the inconsistency.
1.3 No terms or conditions endorsed upon, delivered with or contained in the Customer’s Order, confirmation of order, specification or other document will form part of the Contract.
1.4 These Conditions apply to all of Norbar’s sales and any variation to these Conditions and any representations about the Goods and/or Services will have no effect unless expressly agreed in writing and signed by an authorised representative of Norbar. The Customer 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 Norbar which is not set out in the Contract. Nothing in this Condition will exclude or limit Norbar’s liability for fraudulent misrepresentation.
1.5 Each Order or acceptance of a quotation for Goods or Services by the Customer from Norbar will be deemed to be an offer by the Customer to purchase Goods and/or Services subject to these Conditions and no Order will be deemed to be accepted by Norbar until a written Order Acknowledgement is issued by Norbar or Norbar delivers the Goods and/or Services to the Customer, whichever occurs first.
1.6 Any quotation is given on the basis that no Contract will come into existence until Norbar despatches an Order Acknowledgement or delivers the Goods and/or Services to the Customer. Any quotation is valid for a period of 30 days only from its date, provided that Norbar has not previously withdrawn or amended it.
2.1 The description of the Goods will be as set out in Norbar’s catalogue or other published specification current at the time that the relevant order is accepted by Norbar or, in the case of Services and Engineer to Order Goods, as specified in the relevant quotation or Order Acknowledgement. If there is any inconsistency between the published specification, the quotation and the Order Acknowledgement, the Order Acknowledgement will take precedence over the quotation which will take precedence over the published specification to the extent necessary to resolve the inconsistency.
2.2 Norbar reserves the right to make any changes to the specification of the Goods (including Engineer to Order Goods) and/or Services which are required to conform with any applicable statutory or regulatory requirements or which do not materially affect their quality or performance. The Customer will not be permitted to reject Goods and/or Services and Norbar will have no liability to the Customer in respect of any failure of the Goods and/or Services to comply with any specification in these circumstances.
2.3 The Customer 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) or which arise in the course of conducting the Services belong solely to Norbar and, to the extent that any such rights do not automatically vest in Norbar by operation of law, hereby assigns to Norbar all such rights. The Customer will take any action and execute any document reasonably required by Norbar to give full effect to this Condition.
3.1 In the case of sales of Goods within the UK mainland, delivery will take place:
a) if the Goods are to be collected, on delivery to the Customer or to the Customer’s named carrier at Norbar’s premises at Wildmere Road, Banbury, Oxon OX16 3JU; 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 Norbar’s premises at Wildmere Road, Banbury, Oxon OX16 3JU (INCOTERMS 2010 edition), except where otherwise agreed in writing.
3.2 All Services will be performed at Norbar’s premises at Wildmere Road, Banbury, Oxon OX16 3JU unless otherwise agreed in writing and the Services will be deemed to be performed on completion of the performance of the Services as specified in the Order Acknowledgement.
3.3 Any dates specified by Norbar for delivery of the Goods or performance of the Services 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. The Goods and/or Services may be delivered by instalments.
3.4 If for any reason the Customer will not accept delivery of any of the Goods when they are ready for delivery, or Norbar is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations then, without prejudice to any other right or remedy available to Norbar:
a) risk in the Goods will pass to the Customer;
b) the Goods will be deemed to have been delivered; and
c) Norbar may store the Goods until delivery whereupon the Customer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
3.5 Norbar 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 Norbar upon despatch from Norbar’s place of business will be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
4.2 Norbar will not be liable for any non delivery of Goods (even if caused by Norbar’s negligence) unless written notice is given to Norbar within 14 days of the date when the Goods would, in the ordinary course of events, have been received.
4.3 Any liability of Norbar 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 Customer from the time of delivery.
5.2 Ownership of the Goods will not pass to the Customer until Norbar 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 Norbar from the Customer on any account.
5.3 Until ownership of the Goods has passed to the Customer, the Customer will hold all Goods on a fiduciary basis as Norbar’s bailee and Norbar will be entitled at any time:
a) to require (at no cost to Norbar) that the Goods are stored separately and clearly marked in such a way that they will readily be seen to be the property of Norbar; and/or
b) to require the Customer to deliver up the Goods or any part of them to Norbar and if the Customer 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 Norbar are stored or reasonably thought to be stored in order to inspect and/or repossess them.
5.4 Norbar will be entitled to recover payment for the Goods ordered notwithstanding that ownership of the Goods has not passed from Norbar.
5.5 The Customer 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 and the Customer is not aware that an event specified in Condition 5.6(a) has occurred or is likely to occur.
5.6 Until ownership of the Goods has passed to the Customer, the Customer’s right to possession of the Goods will terminate immediately if:
a) the Customer is made bankrupt or petitions for its 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 Customer fails to observe or perform any of its obligations under the Contract or any other contract between Norbar and the Customer; or
c) the Customer encumbers or in any way charges any of the Goods.
5.7 Ownership of all Customer Equipment will remain the property of the Customer throughout the provision of the Services. Subject to Condition 6.2, Norbar will take reasonable care to safeguard the Customer Equipment and no less care than it takes to safeguard its own similar property.
5.8 On termination of the Contract for any reason, Norbar’s rights under this Condition 5 will remain in effect.
6 PRICE AND PAYMENT
6.1 Unless otherwise agreed by Norbar in writing the price for the Goods and/or Services will be the price set out in Norbar’s price list current as at the date of delivery of the Goods or performance of the Services or will be as set out in any quotation provided by Norbar.
6.2 The price given in the current Norbar price list for calibration and repair services or in any quotation for such Services is subject to the returned Customer Equipment being of serviceable condition. If the Customer Equipment is not of serviceable condition or is out of specification and cannot be adjusted or is uneconomic to repair, either a new quotation will be provided or a service replacement tool will be offered to the Customer. If the Customer does not accept the revised quotation or service replacement within 30 days, Norbar will re-quote, revising the costs as necessary. If after a further 30 days instructions have still not been received, Norbar may (at its option) either return the Customer Equipment and invoice for costs incurred or dispose of the Customer Equipment.
6.3 The price for the Goods and/or Services will be exclusive of any value added tax which the Customer will pay in addition when it is due to pay for the Goods and/or Services. The price for Goods and Services includes the cost of delivery (or return of Customer Equipment in the case of Services) if the order (i) is for delivery on Monday to Friday (inclusive) within the UK mainland to the Customer’s usual Delivery Point using Norbar’s usual delivery method and (ii) has a value of over £100.00 (excluding VAT). If delivery is to Northern Ireland, the price for Goods and Services includes the cost of delivery (or return of Customer Equipment in the case of Services) if the order (i) is for delivery on Monday to Friday (inclusive) to the Customer’s usual Delivery Point using Norbar’s usual delivery method and (ii) has a value of over £300.00 (excluding VAT). In all other cases, the cost of delivery of Goods or return of Customer Equipment will be charged in addition and will be due for payment at the same time as payment for the Goods is due.
6.4 If the Customer holds an account with Norbar, payment of the price for the Goods and/or Services 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. If the Customer does not have an account with Norbar, or if credit facilities have been withdrawn from the Customer, payment is due either at the time the Order is placed or in accordance with any payment schedule set out in the quotation and may be tendered by cheque, credit card or bank transfer. In all cases, payment must be in pounds sterling (except where otherwise agreed in writing).
6.5 Time for payment will be of the essence.
6.6 No payment will be deemed to have been received until Norbar has received cleared funds.
6.7 All payments payable to Norbar 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.
6.8 The Customer will make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Norbar to the Customer.
6.9 If the Customer fails to pay Norbar any sum due pursuant to the Contract the Customer will be liable to pay interest to Norbar 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. WARRANTY AND LIABILITY
7.1 Norbar 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 Norbar’s catalogue or other published specification current at the time that the order for the Goods was accepted by Norbar.
7.2 Norbar warrants that, subject to the other provisions of these Conditions all Services will:
a) be supplied with reasonable skill and care within the meaning of the Supply of Goods and Services Act 1982; and
b) conform in all material respects with the specification for them as set out in Norbar’s catalogue or other published specification current at the time the order for the Services was accepted by Norbar (unless specifically varied in the quotation or Order Acknowledgement).
7.3 Norbar will not be liable for a breach of any of the warranties in Condition 7.1 unless:
a) the Customer gives written notice of the defect to Norbar within 14 days of the time when the Customer discovers or ought to have discovered the defect; and
b) the Customer returns the defective Goods properly packed, carriage paid to Norbar’s premises at the address given in Condition 1.1 or otherwise specified by Norbar.
7.4 Norbar will not be liable for a breach of the warranties in Condition 7.1 if:
a) the Customer makes any further use of the Goods after giving notice of any defect; or
b) the Goods have been misused, mishandled, overloaded, amended, modified or repaired in any way by the Customer 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 Goods have been subject to excessive use or used in an environment for which they were not designed; or
d) the Customer or its customer has failed to follow Norbar’s oral or written instructions as to the storage, installation, commissioning, use, repair, calibration or maintenance of the Goods or the recommendations set out in any national or international standard applicable to the Goods or (if there are no applicable instructions or standards) good trade practice.
7.5 Norbar will not be liable for a breach of the warranties in Condition 7.2 unless:
a) the Customer gives written notice to Norbar identifying which Services are defective in sufficient detail within 14 days of the time when the Customer discovers or ought to have discovered the defect; and
b) if the claim relates to Customer Equipment, Norbar is given a reasonable opportunity to examine the Customer Equipment and to assess the claim of defective Services,
7.6 Subject to Conditions 7.3 and 7.4, if any of the Goods do not conform with any of the warranties in Condition 7.1, Norbar 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. The provisions of these Conditions will apply to any Goods that are remedied or replaced.
7.7 Subject to Condition 7.5 if any of the Services do not conform with any of warranties in Condition 7.2, Norbar will at its option remedy, re-perform or refund the Services that do not comply at the pro rata Contract rate. The provisions of these Conditions will apply to any Services that are remedied or re-performed for a period of 90 days with effect from the date of performance of the remedied or re-performed Services. If any repair of Customer Equipment fails within 90 days after the date on which it was returned to the Customer by Norbar, Norbar will at its option remedy, re-perform or refund the Services that do not comply at the pro rata Contract rate.
7.8 If Norbar complies with Condition 7.6 or 7.7 (as applicable), it will have no further liability for a breach of any of the warranties in Condition 7.1 or 7.2 in respect of such Goods and/or Services.
7.9 Except as provided in Conditions 7.1 and 7.2, Norbar makes no representation or warranty, whether express or implied, as to the quality or fitness for purpose of the Goods or Services 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.
7.10 Nothing in this Contract excludes or limits the liability of Norbar for:
a) death or personal injury caused by Norbar’s negligence; or
b) defective products under the Consumer Protection Act 1987; or
c) for fraud or fraudulent misrepresentation; or
d) any matter for which it would be unlawful for Norbar to exclude or restrict liability.
THE CUSTOMER’S ATTENTION IS DRAWN TO THE PROVISIONS OF CONDITION 7.11
7.11 Subject to 7.10:
a) Norbar’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/or Services; and
b) Norbar will not in any event be liable to the Customer for any loss of profit, loss of business or depletion of goodwill or loss of data, 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 Customer acknowledges that the price of the Goods and/or Services has been calculated on the basis that Norbar excludes and limits its liability in accordance with Condition 7.11.
7.10 Where the Goods and/or Services are sold under a consumer transaction the statutory rights of the Customer are not affected by these Conditions.
8. FORCE MAJEURE
Norbar reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods or Services ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Norbar 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 Norbar to the address set out in Condition 1.1 and in the case of the Customer to the Delivery Point or such other address or fax number as the Customer may from time to time notify to Norbar for this purpose in accordance with this Condition. Notices sent as above will be deemed to have been received three 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 Both Norbar and the Customer will comply with the United Kingdom Bribery Act 2010 and associated guidance and all other applicable United Kingdom legislation, statutory instruments and regulations in relation to bribery or corruption and similar or equivalent legislation in any other relevant jurisdiction.
10.2 Without limitation to clause 10.1, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment or allow any such to be made or received on its behalf either in the United Kingdom or elsewhere and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
11.1 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 Affiliate of Norbar may directly enforce any term of the Contract where “Affiliate” means any entity that directly or indirectly Controls, is Controlled by or is under common control with Norbar and “Control” means ownership of more than 50% of the issued share capital of a company.
11.2 Each right or remedy of Norbar under the Contract is without prejudice to any other right or remedy of Norbar whether under the Contract or not.
11.3 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.
11.4 The Customer will not be entitled to assign the Contract or any part of it without the prior written consent of Norbar. Norbar 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.
11.5 Failure or delay by Norbar 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.
11.6 Any waiver by Norbar of any breach of, or any default under, any provision of the Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
11.7 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.