Starbank Terms and Conditions of Sale
STARBANK PANEL PRODUCTS LTD – conditions of sale
1. In these conditions the following capitalised expressions shall have the following meanings:
“Business Day” a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business
“Company” Starbank Panel Products Ltd
“Contract” the contract between the Company and the Customer for the supply of Goods and/or Services in accordance with these conditions
“Customer” the purchaser of the Goods and/or Services from the Company
“Customer Default” any act or omission by the Customer or failure by the Customer to perform any relevant obligation
“Delivery Location” the location for delivery of the Goods as set out in the Order or such other location as the parties may otherwise agree in writing
“Design” the design produced by the Company as part of the Services
“Goods” the goods (or any part of them) forming the subject matter of any Contract
“Goods Specification” (subject to clause 7) any design, specification, information or details for the Goods (including any relevant plans or drawings) that is agreed in writing by the Customer and the Company
“Intellectual Property Rights” all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world
“Order” the Customer’s order.
“Order Acknowledgement” a written acknowledgement of an Order issued by the Company to the Customer.
“Services” the services (or any part of them) forming the subject matter of any Contract either as a contract for the supply of services alone or a contract for goods and services
“Services Specification” the description or specification for the Services provided in writing by the Company to the Customer.
Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.1 These conditions apply to all Contracts to the exclusion of any other terms or conditions referred to by the Customer. Acceptance of any delivery or performance by or on behalf of the Customer shall in any event be conclusive evidence of the Customer’s acceptance of these conditions.
2.2 No amendment of any Contract or these conditions shall bind the Company unless in writing and signed by an authorised signatory of the Company.
ESTIMATES AND QUOTATIONS
3.1 Estimates or quotations given by the Company do not constitute an offer.
3.2 Estimates or quotations given by the Company are deemed to incorporate these conditions.
3.3 Estimates given by the Company are an indication of costs only and are subject to alteration at any time.
3.4 Quotations given by the Company are only valid for 28 days from its date of issue.
ORDERS AND CONTRACTS
4.1 The Customer shall ensure that the terms of the Order and the information it provides are complete and accurate in all material respects.
4.2 The Order shall only be deemed to be accepted when the Company issues an Order Acknowledgement at which point and on which date the Contract shall come into existence.
4.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, advice, opinion or information made or given by or on behalf of the Company which is not set out in the Contract. Any samples, drawings, descriptive matter, illustrations or advertising issued by the Company and oral representations are issued or published or made for the sole purpose of giving an approximate indication of the Goods offered and shall not form part of the Contract except as agreed in writing. No contract shall constitute a sale by sample notwithstanding that any products may have been exhibited to or inspected by the Customer.
4.4 Any catalogues, price lists, samples, or advertising issued by the Company and oral representations made by the Company are for the sole purpose of giving an approximate indication of the Goods and/or Services offered and shall not form part of the Contract. No contract shall constitute a sale by sample notwithstanding that any products may have been exhibited to or inspected by the Customer.
PRICES AND PAYMENTS
5.1 The price of the Goods and/or Services shall be the price set out in the Contract. Prices are exclusive of VAT where applicable and all other taxes or duties of whatsoever kind and are exclusive of all costs and charges of packaging, insurance and transport of the Goods.
5.2 The Company’s prices may be varied at any time before or after an Order is placed:
5.2.1 to take account of any increases in costs and expenses arising from whatever cause. In which case the Customer shall have the option within 3 Business Days of notice to cancel that part of the Order affected by the increase. Manufacture and accordingly delivery of the Goods may be delayed pending the Customer’s instruction to proceed;
5.2.2 in the event that any information, instruction, data or materials provided by the Customer is inaccurate or insufficient or if the Customer delays in the supply of information, instruction, data or materials as the Company may reasonably require; or
5.2.3 in the event that the Customer, with the agreement in writing of the Company (at its discretion), wishes to make any amendments including to the Order or the Goods Specification and/or the Services Specification. In which case the Customer shall pay to the Company:
18.104.22.168 all additional material costs incurred by the Company as a result of the amendment: and
22.214.171.124 all labour costs incurred by the Company as a result of the amendment; and
126.96.36.199 a £75 administration charge.
5.4 The Company will usually invoice the Customer on delivery of the Goods, and/or Services, but may in its discretion invoice and require payment for the Goods and/or Services in advance of delivery at any time after it has issued the Order Acknowledgement.
5.5 Subject to clause 5.4 all amounts due to the Company, shall be payable in pounds sterling within 30 days of the date of invoice without any discount, set-off or other deduction whatsoever and time for payment shall be of the essence of the Contract.
5.6 Without prejudice to any other rights of the Company, if the invoice is not paid in full by the due date interest shall be payable on any overdue amount from the date on which payment was due to that on which it is made (whether before or after judgement) on a daily basis at the rate of 5 per cent per annum above the base rate from time to time quoted by the Company’s bankers or, if greater, as determined in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. The Customer shall also pay all legal and other costs and expenses incurred by the Company in recovering any amounts owing from the Customer and any Goods in which title has been retained by the Company. Such costs shall be due for payment immediately on invoice.
SUPPLY OF SERVICES
6.1 The Company shall provide the Services to the Customer in accordance with the Services Specification in all material respects.
6.2 The Company shall use all reasonable endeavours to meet any performance dates for the Services proposed or confirmed by it, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
GOODS AND TOLERANCES
7.1 The Goods are described in the Goods Specification.
7.2 A Design shall not be deemed to form part of the Goods Specification until the Customer has given its written approval of the Design in accordance with clause 7.3.
7.3 The Customer shall following receipt of the Design, and in any event before it places its Order, notify the Company in writing whether the Customer (acting reasonably):
7.3.1 approves the Design
7.3.2 wishes modifications to be made to the Design (giving details); or
7.3.3 rejects the Design.
7.4 If requested so to do by the Customer under clauses 7.3.2 or 7.3.3 the Company will make such reasonable changes to the Design as appropriate and resubmit it to the Customer for approval in accordance with clause 7.3.
7.5 The Company reserves the right at any time to make appropriate amendments to the Goods Specification at the Customer’s cost and expense in order to facilitate the manufacturing process and to take account of any tolerance level of any material specified in the Goods Specification to be used in the manufacture of the Goods. The dimensional tolerances for Goods which the Company can achieve (outside the recommended industry machining tolerance of +/- 0.5mm) will depend on the material specified in the Goods Specification. It may not be practical for the Company to confirm the tolerances which are achievable for certain materials until after manufacture has commenced.
7.6 The Company makes no representation or warranty as to the tolerances achievable in relation to any standard material specifications and shall have no liability in respect of the same.
7.7 Where specific tolerances are required by the Customer the Company will, prior to manufacture and subject to the materials for manufacture being included in the Goods Specification, enter into tests (at the Customer’s expense) and, based on the results of those tests, will agree feasible tolerances with the Customer. The Company will endeavour to achieve such tolerances.
DELIVERY OF GOODS
8.1 Delivery of the Goods shall occur on the Company making the Goods available at the Delivery Location and a signature on the Company’s delivery note shall be evidence thereof notwithstanding that this may not be the signature of the Customer or any of its employees and a refusal to sign such note shall be a failure to accept or take delivery. Notwithstanding any assistance which may be provided by the Company’s employees or agents, the Customer shall be solely responsible for unloading the Goods at the Delivery Location, or, in the event that it is agreed that the Customer shall collect the Goods from the Delivery Location, for loading the Goods.
8.2 The Company will endeavour to comply with any delivery date proposed or confirmed by it but any such dates shall be estimates only, time shall not be of the essence and the Company shall not be liable for any loss, damage or expense arising from any delay or failure in delivery or performance from any cause whatsoever nor shall any such delay or failure entitle the Customer to refuse to accept any delivery or performance or repudiate the Contract.
8.3 The Customer shall be responsible for all costs and expenses incurred by the Company in the event that the Customer fails to accept or take delivery of any Goods or materials on which the Company has performed work when tendered at the agreed time or, if the Customer is to collect them, to collect them within 3 Business Days of the Company notifying the Customer that the Goods are ready for collection and the Company may require the Customer to pay for the Goods (including any work) as though delivery or performance had been completed or may resell or otherwise dispose of part or all of the Goods.
8.4 The Company may deliver the Goods by instalments, each of which shall be deemed to be the subject of a separate Contract which shall be invoiced and paid for separately and no failure by the Company in any instalment shall entitle the Customer to repudiate any Contract for Goods previously delivered or to refuse to accept any undelivered Goods.
TITLE AND RISK
9.1 The risk in the Goods shall pass to the Customer on completion of delivery.
9.2 Title in the Goods shall remain with the Company and not pass to the Customer (who shall, nevertheless, subject to the conditions stated below, be entitled to resell them as principal only, and to use them in the ordinary course of business) until the Company has received payment in full (in cash or cleared funds) for the Goods and of all other debts for any other Contract owed to it by the Customer on any account.
9.3 Until title passes:
188.8.131.52 the Customer shall:
184.108.40.206 hold the Goods as the Company’s bailee and ensure that they remain readily identifiable as the Company’s property; and
220.127.116.11 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Company’s behalf from the date of delivery,
9.3.2 the Company shall be entitled at any time on demand to:
18.104.22.168 require the Customer to deliver up the Goods in order to recover them and sell all or any of them and thereby terminate (without any liability to the Customer) the Customer’s right to use or sell them, provided the Goods have not been resold, and without limiting any other right or remedy the Company may have; and
22.214.171.124 enter any premises of the Customer or of any third party where the Goods are located for the purpose of inspecting or repossessing them and if the Goods are incorporated or attached to other assemblies of fabrications then the Company may remove the Goods (without being liable for any damage thereby occasioned).
9.4 The Company shall, without prejudice to any other remedy, be entitled to maintain an action for the price of the Goods although title in them has not passed to the Customer.
9.5 The Company transfers to the Customer only such title and rights of use as the Company has in any Goods and in the case of items provided by any third party shall transfer only such title and rights as that party had and has transferred to the Company.
LOST OR DAMAGED GOODS ETC
10.1 If at the time of delivery any Goods are missing, lost or damaged or otherwise not in accordance with the Contract the Company may at its discretion replace or repair the Goods concerned at the original point of delivery at its expense within a reasonable period or allow credit for their invoice value, subject to these conditions and all other requirements of the Company current from time to time.
10.2 The Company shall have no liability in respect of any such discrepancy unless the Customer has given the Company notice thereof:
10.2.1 (in case of any Goods which are missing, damaged or otherwise not in accordance with the Contract) within 3 Business Days of receipt of the consignment;
10.2.2 (in case of loss of a whole consignment) within 7 days from the expected date of delivery; or
10.2.3 (in the case of any loss, shortage, damage or non-conformity with the Contract which could not reasonably be detected upon inspection) immediately upon the discrepancy becoming apparent and in any event not later than 3 months after receipt of the Goods.
11.1 Unless there is a separate written guarantee issued by the Company in respect of the Goods, the terms of this clause 11 shall apply.
11.2 If there occurs in any Goods any failure occasioned by a defect of materials, workmanship or design (normal wear and tear excepted) within a period of 12 months from the date of the Company’s despatch of the Goods the Company will, subject to these conditions, within a reasonable period at its option, make good free of charge by replacement at the original point of delivery or repair or give credit for the invoice value of any such Goods provided the Customer has given the Company written notification of the defect immediately upon the occurrence of such failure and in any event within the said warranty period.
11.3 The Company shall have no liability for:
11.3.1 use of the Design for any purpose other than the use set out in the Services Specification; the Customer uses the Design at its own risk and the Company accepts no liability for the Design’s suitability for any particular purpose;
11.3.2 any Goods which have been installed, used, maintained, adjusted or stored otherwise than in accordance with the Company’s oral or written recommendations (or the recommendations of any Company of any item with which the Goods are used) or (if there are none) good trade practice or have suffered any excessive wear, overloading, misuse, neglect, accident or abnormal working conditions;
11.3.3 any accessories or proprietary parts or fittings which is not of the Company’s manufacture. If any such item is alleged to be defective, the Company’s liability shall be limited to assigning to the Customer (so far as it is able to do so) any warranty given by the manufacturer of that item;
11.3.4 any Goods which have been modified or interfered with in any way or without the Company’s prior written approval or the Customer has failed to carry out any modification or improvement recommended by the Company;
11.3.5 any Goods supplied as used or reconditioned ;
11.3.6 any costs (including labour) of removing any Goods forming the subject of any claim which has been accepted by the Company or the refitting of any repaired or replacement items or any taxes, duties or similar charges payable in connection with the transportation to the Customer of any replacement parts;
11.3.7 any discrepancy which results from any information or materials supplied by or on behalf of the Customer;
11.3.8 any costs or losses sustained or incurred by the Customer arising directly or indirectly from a Customer Default; or
11.3.9 any defect in any replacement goods or re-performed services which appears after the warranty period applicable to the original Goods has expired.
11.4 Except as expressly provided in these conditions the Company accepts no liability, express or implied, for any life or wear of any Goods or their quality or suitability for any particular purpose or use under specific conditions (whether or not known to the Company
11.5 The terms of these conditions shall apply to any repaired or replacement Goods supplied by the Company under clause 11.2 or 12.1.
11.6 The Customer is expressly forbidden from providing to third parties any form of guarantee as if from the Company in respect of the Goods and shall indemnify hold harmless the Company against any and all claims, proceedings, costs, damages, liabilities and expenses incurred or suffered by the Company in this regard.
12.1 The Company shall have no liability in respect of any claim by the Customer under these conditions or in respect of any Goods, Services or Design supplied with reference to them unless:
12.1.1 notice of the claim is given to the Company in writing; and
12.1.2 the Customer has afforded the Company reasonable opportunity and facilities for the investigation of any claim and the making good of any discrepancy or defect; and
12.1.3 the opportunity for the Company to investigate any claim is given (in the case of any discrepancy which is reasonably apparent on inspection) within a period of not less than 3 days from the date on which notice of the claim is given and before the Goods are used or re-sold; and
12.1.4 the Customer has paid the full amount of all invoices due prior to the date of the claim.
12.2 If, in accordance with clauses 11.2 or 12.1, the Company opts to replace any Goods in such circumstances, the cost of any such replacement shall be initially borne by the Customer but credited by the Company if the Customer returns the alleged damaged or defective Good and the claim is accepted and any replaced items shall belong to the Company and may be disposed of only in accordance with the Company’s instructions.
12.3 No Goods may be returned unless the Company has requested their return and allocated a returns number and such returns number is marked on the packaging of the Goods.
12.4 Goods in respect of which no claim is made in accordance with these conditions shall be deemed to have been accepted by the Customer in accordance with the Contract and the Company reserves the right to charge the Customer with any administration, handling or other costs it incurs in connection with any claim it does not accept.
EXTENT OF LIABILITY
13.1 Except as expressly provided in clauses 11 or 12 neither the Company (nor any third party) shall have any obligation duty or liability in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever in connection with any Contract or in respect of any Goods, Services or Design supplied with reference to it except only to the extent that, by statute, the Company may not exclude liability including for:
13.1.1 death or personal injury caused by negligence on the part of the Company or its employees whilst acting in the course of their employment; or
13.1.2 fraud or fraudulent misrepresentation on the part of the Company or any of its employees whilst acting in the course of their employment.
13.2 The Company shall in no circumstances have any liability for:
13.2.1 any economic loss (whether direct or indirect), including but not limited to wasted time or expenditure, loss of profits, production, business revenue or goodwill;
13.2.2 any indirect, special or consequential loss, damage, costs, expenses or other claims for compensation whatsoever of the Customer arising out of, under or in connection with the Contract;
13.2.3 any claims against the Customer by any person and the Customer shall be solely responsible for any such losses or claims.
13.3 Subject to clause 13.1 above:
13.3.1 The Company shall be discharged of all liability to which these conditions apply unless (without extending statutory limitation) proceedings are begun and served within 12 months after the Customer became aware (or should reasonably have become aware) of the facts giving rise to such liability;
13.3.2 The Company’s liability in connection with the Contract shall in no circumstances exceed their invoice price.
13.4 Any claim by the Customer or acceptance of liability by the Company in respect of any particular Goods and/or Services shall not entitle the Customer to reject or refuse to pay for any other Goods and/or Services comprised in the same or any other Contract.
13.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
INTELLECTUAL PROPERTY RIGHTS
14.1 All Intellectual Property Rights in or arising out of or in connection with the Contract and all drawings, designs or other Intellectual Property Rights and all materials, tools, patterns or other items prepared or made available by the Company for the Contract shall, unless otherwise agreed by the Company, be and remain the Company’s property and the Customer shall not copy or reproduce the same in whole or in part in any form or allow others to do so.
14.2 The Company grants to the Customer a perpetual, irrevocable, royalty free worldwide, non-exclusive, non-transferable licence to use the Design for the use set out in the Services Specification.
14.3 The Customer shall not make any amendment to the Design (or any part of the Design) without the Company’s prior written consent.
14.4 The Customer shall be responsible for and shall indemnify and hold harmless the Company against any and all claims, proceedings, costs, damages, liabilities and expenses incurred or suffered by the Company arising from any use of the Design or from any instructions, data, drawings, specifications, tooling, equipment, materials, services or other items supplied by or on behalf of the Customer to the Company or from any failure to supply the same or any inaccuracy, insufficiency or default in them or from any infringement or alleged infringement of the rights of any third party resulting from the Company’s use of any of the foregoing items.
14.5 Under no circumstances shall the name of the Company or any trade mark or extract from technical literature relating to the Company’s products or any other item associated with the Company be used in any technical literature or advertising matter of the Customer without the prior written approval of Company.
TERMINATION OR SUSPENSION
15.1 If the Customer fails to make any payment when and as due or otherwise defaults in any of its obligations under the Contract or any other agreement with the Company, is unable to pay its debts in the ordinary course of its business, has a receiver, manager, administrator, administrative receiver or trustee in bankruptcy (as the case may be) appointed for all or any part of its undertaking, assets or income, has a resolution passed or a petition presented to any court for its winding up (compulsorily or voluntarily), enters into any composition or arrangement with its creditors (whether formal or informal), has any distraint or execution levied on any of its assets, suffers any action similar to any of the foregoing in any jurisdiction or ceases to trade or the Company bona fide believes that any of the foregoing matters may occur, then, in any such event, the Company shall, without prejudice to any other remedy, be entitled, at its discretion, without liability to the Customer, by giving the Customer written notice at any time or times, to suspend its performance of or (whether or not such performance has previously been suspended) terminate such or any other Contract of the Customer and the price of all such Goods as have been delivered or prepared for any Contract of the Customer and any other costs and expenses incurred by the Company in relation to the Contract shall forthwith thereupon become immediately due and payable.
15.2 The rights of the Company shall not be prejudiced or restricted by any indulgence or forbearance extended to the Customer and no waiver by the Company in respect of any breach shall operate as a waiver in respect of the same or any subsequent or other breach.
15.3 The acceptance of any cancellation for the Contract requested by the Customer shall be at the Company’s discretion and take effect only when written confirmation of such acceptance has been given by the Company and, except where the cancellation results from the failure of the Company to comply with these conditions, the Customer shall pay to the Company:
15.3.1 all material costs and labour costs incurred by the Company as at the date of cancellation; and
15.3.2 a £75 administration charge.
15.4 On termination of the Contract for any reason the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of contract which existed at or before the date of termination or expiry.
16.1 The Company shall not be liable for any delay or other failure to perform the whole or any part of the Contract resulting from any cause beyond the reasonable control of the Company.
16.2 The Company may at its discretion assign all or any of its rights or subcontract all or any of its obligations under the Contract to any third party.
16.3 Any notice or other communication to be given under the Contract shall be in writing and shall be deemed to have been given:
16.3.1 if delivered personally to the principal place of business of the receiving party on the next Business Day;
16.3.2 if sent by prepaid first-class post or recorded delivery, on the second Business Day after posting to the principal place of business of the receiving party;
16.3.3 if delivered by commercial courier on the date and at the time that the courier’s delivery receipt is signed;
16.3.4 if sent by fax to the receiving party’s main fax number, on the next Business Day after transmission (if receipt is confirmed in writing); or
16.3.5 if sent by email to email@example.com, on the next Business Day after the email was sent (if receipt is confirmed in writing).
16.4 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted or shall apply with the minimum modification necessary to make it legal, valid and enforceable, and the validity and enforceability of the other provisions of the Contract shall not be affected.
16.5 A person who is not a party to the Contract shall not have any rights under or in connection with it.
16.6 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 irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
Starbank Panel Products Limited
Registered office: Sankey Valley Industrial Estate, Newton-le-Willows, Merseyside, WA12 8DJ
Issued August 2014
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