Linton Services Limited - Terms & Conditions of Business

August 2010
Note: The attention of the buyer is particularly drawn to the provisions of Sections 11 and 12 which contain restrictions on the liability of the company to the buyer.
 
1. INTERPRETATION
 
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 Linton Services Limited registered in England (No 03274213);
 
"Conditions" Means the standard terms and conditions of sale set out in this document;
 
"Contract" Means any contract between the Company and the Buyer for the sale and purchase of the Goods or Services, incorporating these Conditions;
 
"Delivery Point" Means the place where delivery of the Goods or Services is to take place under clause 5;
 
"Goods" Means any goods or services agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them);
1.2 In these Conditions:-
  (a) references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires;
  (b) headings will not affect the construction of these Conditions; and
  (c) references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
 
2. APPLICATION OF TERMS
 
2.1 Subject to any variation under clause 2.3 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).
 
2.2 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 document being referred to in the Contract.
 
2.3 These Conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a Director of the Company. Nothing in these Conditions (including without limitation this clause 2.3 or clause 2.8) will exclude or limit the company's liability for fraudulent misrepresentation.
 
2.4 Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
 
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
 
2.6 The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
 
2.7 Any quotation is given on the basis that no contract will come into existence until the Company despatches an acknowledgement of order 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 it.
 
2.8 If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with a specification submitted by the Buyer and agreed in writing by the Company then:
  (i) the Buyer shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with, or paid or agreed to be paid by the Company in settlement of, any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Company's use of the Buyer's specification;
  (ii) the Company warrants (for a period of 12 months from delivery of the Goods) that the Goods have been manufactured to a reasonable standard in accordance with the specification submitted by the Buyer and agreed in writing by the Company and in the event that in the period of 12 months from delivery there is any failure in the Goods which, under conditions of proper use and maintenance, result from defects in the Company's manufacture, materials or workmanship the Company shall at its option repair or replace the Goods. For the avoidance of doubt the Company shall not give a warranty as to the fitness for purpose or any other warranty in respect of such Goods;
  (iii) the Company shall have no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer and agreed in writing by the Company and the Buyer shall be deemed by the Company to have carried out its own tests to ensure suitability of the Goods for their intended purposes and application;
  (iv) any technical or other advice or information provided by the Company to the Buyer (whether verbally or in writing) and relating to any drawing, design or specification supplied by the Buyer is given without warranty. Any such information or advice is given for general guidance purposes only and all liability of the Company is excluded for actions taken or not taken by the Buyer in reliance on this guidance alone and the Buyer must take its own specific advice.
 
3. THE BUYER
 
3.1 The Goods are sold to the Buyer.
 
3.2 The Buyer shall not represent itself as an agent of the Company for any purpose nor pledge the Company's credit or give any condition or warranty or make any representation on the Company's behalf or commit the Company to any contract. Further, the Company shall not, without the Company's prior written consent, make any promises or give any guarantee with reference to the Goods beyond those contained in the promotional literature supplied by the Company with the Goods or otherwise incur any liability on behalf of the Supplier.
 
3.3 The Goods shall only be resold by the Buyer exactly as supplied by the Company (and the Buyer shall ensure that the promotional literature, including any warranty for the benefit of end users, supplied with the Goods is supplied to any end user in exactly the same form as it is provided by the Company to the Buyer).
 
3.4 The Conditions or the Contract do not create any obligation upon the Company to supply the Goods (or any goods) to the Buyer in priority to any other of the Company's customers.
 
4. DESCRIPTION
 
4.1 The description of the Goods shall be as referenced in the Company’s quotation.
 
5. DELIVERY
 
5.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company’s place of business by the Company notifying the Buyer that the Goods are available for the Buyer's collection.
 
5.2 The Buyer will take delivery of the Goods within ten (10) days of the Company giving it notice that the Goods are ready for delivery.
 
5.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
 
5.4 Subject to the other provisions of these conditions the Company will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 30 days.
 
5.5 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 from the time that either the Buyer has failed to accept delivery or the Company has been unable to deliver the Goods (whichever is the case):
  (a) risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence);
  (b) the Company may store the Goods until delivery or sale pursuant to clause 5.5(c) whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance);
  (c) the Company may at its discretion sell the Goods, at any time, to a third party and the Buyer shall be liable for the difference in the price obtained by the Company and the price which is due from the Buyer for the Goods (defined in clause 9.1) plus any costs and expenses which the Company incurs in the course of the sale to the third party.
5.6 The Buyer will provide, at its expense, at the Delivery Point adequate and appropriate equipment and manual labour for loading (or unloading, if applicable) the Goods.
 
6. NON-DELIVERY
 
6.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
 
6.2 The Company shall 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 7 days of the date when the Goods would in the ordinary course of events have been received.
 
6.3 Any liability of the Company for non-delivery of the Goods shall 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.
 
7. RISK/TITLE
 
7.1 The Goods are at the risk of the Buyer from the time of delivery.
 
7.2 Title and property in the Goods, including but not limited to full legal and beneficial ownership of the Goods, shall 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:
  (a) the Goods; and
  (b) all other sums which are or which become due to the Company from the Buyer on any account.
 
7.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
  (a) hold the Goods on a fiduciary basis as the Company’s bailee;
  (b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
  (c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
  (d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
  (e) hold the proceeds of the insurance referred to in clause
 
7.3 (d) on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
 
7.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
  (a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
  (b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
 
7.5 The Buyer’s right to possession and use of the Goods shall terminate immediately if:
  (a) the Buyer has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or if an application is made to the court for an administration order in respect of the Buyer, if any person appoints or purports to appoint an administrator of the Buyer by notice, or if any person gives notice under either paragraph 15 or paragraph 26 of Schedule B1 to the Insolvency Act 1986 of its intention to appoint an administrator of the Buyer, or if an order or interim order for the administration of the Buyer is made or if the Buyer has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
  (b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
  (c) the Buyer encumbers or in any way charges any of the Goods.
7.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
 
7.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
 
8. TERMINATION
 
8.1 The Company may terminate any Contract with the Buyer with immediate effect by written notice to the Buyer if the Buyer:
  a) is in material breach any of the terms of a Contract and (if such breach is remediable) fails to remedy such breach within 15 days of being notified of such breach;
  b) fails to pay any amount due to the to the Company within twenty-eight (28) days of the payment being due;
  c) has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or if an application is made to the court for an administration order in respect of the Buyer, if any person appoints or purports to appoint an administrator of the Buyer by notice, or if any person gives notice under either paragraph 15 or paragraph 26 of Schedule B1 to the Insolvency Act 1986 of its intention to appoint an administrator of the Buyer, or if an order or interim order for the administration of the Buyer is made or if the Buyer has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
  d) suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade.
8.2 In the event of a termination of a Contract in accordance with Clause 8.1, Company shall have no further obligation to perform under that Contract and all monies due to the Company under that Contract and any other Contract (including for part performance of any Contract) shall be payable by the Buyer.
 
9. PRICE
 
9.1 Unless otherwise agreed by the Company in writing the price for the Goods shall be the price set out in the Company’s quotation and acknowledgement of order.
 
9.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
 
9.3 The price for the Goods for export shall be exclusive of any national or local taxes, duties, tariffs, or other fees associated with licences or other documentation and incurred while en-route to the point of delivery, all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
 
10. PAYMENT
 
10.1 Payment of the price for the Goods is due 30 days from the date when the Goods are delivered or deemed to be delivered.
 
10.2 Time for payment shall be of the essence.
 
10.3 No payment shall be deemed to have been received until the Company has received cleared funds.
 
10.4 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
 
10.5 The Buyer shall make all payments due under the Contract without any deduction whether by way of setoff, 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.
 
10.6 The Company reserves the right to claim interest and costs under the Late Payment of Commercial Debts (Interest) Act 1998.
 
10.7 If any payment due to the Company from the Buyer falls into arrears the Company shall have the right to cancel or postpone performance of any Contract wholly or in part and all monies due to the Company from the Buyer (including without limitation for part performance of any Contract) shall be immediately payable.
 
11. QUALITY
 
11.1 The Company warrants that (subject to the other provisions of these Conditions including without limitation clause 2.8) upon delivery, and for a period of 12 months from the date of delivery, the Goods will:
  (a) be of satisfactory quality within the meaning of the Sale of Goods Act 1994;
  (b) be reasonably fit for the purpose for which they are usually supplied;
 
11.2 The Company shall not be liable for a breach of any of the warranties in clause 11.1 or clause 2.8 (whichever is applicable) unless:
  (a) the Buyer gives written notice of the defect to the Company, and (if the defect is as a result of damage in transit) to the carrier, within 2 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Company accordingly, the Buyer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract; and
  (b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods.
 
11.3 The Company shall not be liable for a breach of any of the warranties in clause 11.1 or clause 2.8 (whichever is applicable) if:
  (a) the Buyer makes any further use of such Goods after giving such notice; or
  (b) if the defect arises because the Buyer 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; or
  (c) the Buyer alters or repairs such Goods without the written consent of the Company.
11.4 Subject to clauses 11.2 and 11.3, if any of the Goods do not conform with any of the warranties in clause 10.1 or clause 2.8 (whichever is applicable) the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate.
 
11.5 If the Company complies with clause 11.4 it shall have no further liability for a breach of any of the warranties in clause 11.1 or clause 2.8 (whichever is applicable) in respect of such Goods.
 
11.6 Any Goods replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 12 month period.
 
12. LIMITATION OF LIABILITY
 
12.1 Subject to clause 11 or clause 2.8 (whichever is applicable), the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Buyer in respect of:
  (a) any breach of these Conditions; and
  (b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
 
12.3 Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
 
12.4 Subject to clauses 12.2 and 12.3:
  (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 shall be limited to the price of the Goods; and
  (b) the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
 
13. ASSIGNMENT
 
13.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
 
13.2 The Company may assign the Contract or any part of it to any person, firm or company.
 
14. FORCE MAJEURE
 
14.1 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, acts of terrorism, protests, 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 provided that, if the event in question continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
 
15. GENERAL
 
15.1 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.
 
15.2 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, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
 
15.3 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.
 
15.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
 
15.5 The parties to this Contract do not intend that any term of this 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.
 
15.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
 
16. COMMUNICATIONS
 
16.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission, or by electronic mail (email):
  (a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
  (b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Buyer.
 
16.2 Communications shall be deemed to have been received:
  (a) if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
  (b) if delivered by hand, on the day of delivery;
  (c) if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day;
  (d) if sent by electronic mail where a “read receipt” acknowledgement is provided.
 
16.3 Communications addressed to the Company shall be marked for the attention of the Directors.