Terms and Conditions of Sale
1. General Conditions.
(a) Any Contract made by Transmission Development Co (GB) Ltd or subsidiary thereof ( hereinafter called ‘the Seller’ ) for the supply of its products or service to a purchaser or customer ( hereinafter called ‘the Buyer’) shall be subject to the following Conditions of Sale, which shall supersede any earlier sets of conditions appearing in the Seller’s catalogues or elsewhere. It is agreed that only these Conditions apply to Contracts between the Seller and the Buyer and any documents emanating from the Buyer which contain printed or standard conditions which have been or shall be sent by the Buyer are received by the Seller on the understanding that they appear on the Buyers documents because they are printed thereon but have no legal effect whatsoever and the Buyer waives any rights which the Buyer otherwise might have to rely on such conditions.
(b) The Seller reserves the right to add to, amend or vary the Conditions as herein set out by appending such additions, variations or notifications to the quotation or in any written correspondence effected between the parties.
2. Price and Variation.
Any price recorded in the Order or Contract is subject to alteration without notice and the Seller’s price for the products ruling at the date of despatch will be the Contract price. All prices stipulated may be subject to additional carriage and packing charges, whether delivered in the UK or World-wide.
3. Value Added Tax.
All prices or associated fees quoted are exclusive of Value Added Tax which, if applicable, shall be added to the price at the rate prevailing at the date of Tax point.
4. Payment and Effect of Non-Payment.
(a) Credit will be granted at the Seller’s discretion and the following terms for payment will then apply. Otherwise products must be paid for by the Buyer at the time of order, against pro-forma invoices, or with accepted credit cards.
(b) Payment at net invoice value is due by the last day of the month following the month of delivery, or any other such periods as specified by the Seller, and amounts received will be deemed to be in settlement of the oldest debt due. No cash discounts are granted.
(c) Goods will be invoiced when ready for despatch and where progress payments are the agreed terms then the provision of sub-clause (b) hereof will apply to the final instalment only of the price.
(d) Without prejudice to all other rights available to it at Common Law the Seller reserves the right in the event of the Buyer not complying with the agreed provisions as to payment at the time of entering into the contract to suspend work upon the Contract until the agreed Terms of Payment have been fully undertaken by the Buyer to the Seller’s satisfaction. In the event of such suspension of work operating the Buyer shall have no claim against the Seller for late delivery or late completion of the Contract and furthermore the Seller shall be entitled to charge the Buyer the cost of ‘waiting time’ and any other expenses incurred as a direct result of the suspension of work or for the breach or non-observance by the Buyer of the conditions as to payment herein set out. The Seller also reserves the right to suspend or withdraw credit facilities for Contracts or Orders already accepted whereupon payment may then be requested as sub-clause (a) hereof.
5. Advice By Seller.
The Seller may, if requested, be prepared to assist the Buyer in deciding which type of products are suited to a particular application. However, any such advice and assistance which is given by the Seller is given on the understanding that the Seller is under no liability for any loss or damage arising therefrom and the Buyer must conduct all necessary tests on the products in their intended application before commencing use thereof and the onus is on the Buyer so to do.
6. Drawings and Descriptions.
All drawings, photographs, illustrations, specifications, performance data, dimensions, weights and the like, whether contained in the Contract or made by way or representation, have been provided by the Seller with the intent that they are as accurate a description of the Products, shall not be taken to be representations made by the Seller and are not warranted to be accurate. Where exact dimensions or performances are critical, additional information should be requested by the Buyer.
(a) Products are supplied in accordance with the specification (if any) submitted to the Buyer and any additions and alterations shall be subject to an additional charge. Any parts not so specified shall be in accordance with the Seller’s printed catalogues or the catalogues of the Seller’s suppliers (subject to any modifications made since last publication). If the Seller adopts any change in construction or design of the products or the specifications thereof the Buyer shall accept the products so changed in fulfilment of the Order.
(b) The Seller reserves the right without prior notice to effect modifications, specifications, design changes and to discontinue manufacture of any products as part of a continuous programme of product development.
8. Acceptance of Quotations.
(a) No binding Contract between the Buyer and Seller shall be deemed to have been effected except in accordance with any quotation submitted by the Seller and until the Order constituted by such acceptance has been confirmed in writing by the Seller.
(b) Subject to the provision of sub-clause (a) hereof no quotation undertaken by the Seller shall be available for acceptance by the Buyer more than 30 days after the same have been submitted by the Seller to the Buyer.
(c) The Seller reserves the right to amend or alter any quotation submitted by the Seller to the Buyer prior to the issue of an order by the Buyer to the Seller by notice in writing at any time.
9. Cancellation of Order or Contract.
Where the Buyer cancels an order or Contract after it has been previously accepted by the Seller the Seller reserves the right to charge the Buyer with all costs relating to the Order or Contract which is cancelled and which have been incurred prior to the Seller receiving notification of the cancellation. The charge will include, but not be restricted to, any costs of material which have been purchased for the Contract.
The Seller shall be permitted without prior consent of the Buyer to
sub-contract the whole or any part of the contract or to employ any independent Contractor to perform its obligations under any such Contract. In so doing none of the obligations accepted hereunder by the Seller shall in any way be reduced or varied.
Tools, dies, injection mould tools and patterns charges, if any, are in addition to the price of the Products and will be invoiced for and are due and payable upon completion of the tooling. The property of such tools, dies, injection mould tools and patterns shall remain vested in the Seller and the Buyer shall have no rights to remove such tools, dies, injection mould tools and patterns from the Seller’s factory nor prevent their use for or by other Buyers, except under special agreement in writing by both the Buyer and the Seller.
12. Defective Service on Free issue Material-Limitation of Liability.
(a) In view of the disproportionate difference between the likely value of the Buyers Products and the price of the service to be provided by the Seller, the Sellers liability with respect to any default in service or in respect of any error in any information provided to the Buyer concerning the service or the condition or performance of the Buyers Products which has formed a representation or is part of the contract between the Buyer and Seller shall be limited to a maximum of twice the contract price of the Relevant Service. The Relevant Services are the services which the Seller carries out or agrees to carry out to those of the Buyers Products affected by the defect default or error. The Seller may at its option and where feasible carry out the Relevant Services again in lieu of making any payment or credit to the Buyer.
(b) The Seller will only be liable to the Buyer in respect of the matters set out in clause 12 sub-section (a) provided that :- (i) the Buyer informs the Seller of the defect of default or error as soon as is reasonably practicable and, (ii) in any event the defect default or error is notified to the Seller within one month of the re-delivery of the Buyers Products after completion of the services and authority is provided for the Seller’s servants or agents to inspect the same without delay.
(c) The Seller shall have no liability in respect of any damage or loss incurred by the Buyer by reason of the Buyer’s failure to provide adequate and accurate
information regarding the Buyers Products
(d) The Seller shall have no further liability in respect of any direct or consequential loss or damage sustained by the Buyer arising from, or in connection with any such defect default or error as aforesaid.
13. Suitability of Buyer’s Products of Free issue Materials
The Buyer warrants that all Buyer’s Products supplied for processing are suitable for the processing requested by the Buyer and that all matters which may effect such suitability have been made known to the Sellers in writing. The Buyer will indemnify the Seller against any costs, liabilities, expenses or claims arising by reason of the Buyer’s breach of such warranty. The Seller reserves the right to decline to carry out or complete any services which it has agreed to carry out if in its reasonable opinion the Buyers Products are not suitable without incurring any liability therefor.
(a) If the Seller shall undertake the installation of the Products, the Buyer shall be responsible for ensuring that all the necessary power, plant, services, labour and any other facilities specified by the Seller shall be available when required. The Seller shall be able to undertake such work, without interruption during normal working hours, unless specified and agreed in writing by both the Buyer and Seller.
(b) Upon completion of the installation the Seller shall test the products. The
Buyer shall be given the opportunity to attend such tests, but such tests shall not be delayed in the event of the buyer failing to attend.
(c) The installation of the products shall be deemed to be satisfactory unless the Buyer shall give notice of any faults within 3 days of the testing of the products.
(d) The Seller shall endeavour to meet the Buyer’s delivery requirements but shall not be liable for any loss or damage caused by delay in installation or delivery and the Buyer shall not be entitled to cancel the contract because of such delay.
(e) The Seller shall not be liable for any redecoration or repair arising from the siting or installation of the Products.
15. Health and Safety Indemnity.
The Buyer shall indemnify the Seller in respect of any liability, monetary penalty or fine in respect of, or in connection with the Products incurred by the Seller under the Health and Safety at Work Act 1974 or any statutory modification or
re-enactment thereof or any regulations, orders or directions made thereunder.
16. Infringement of Industrial Property Rights.
The Buyer shall indemnify the Seller against all damages, penalties, costs and expenses to which the Seller may become liable as a result of work done in accordance with the Buyer’s specifications which involves the infringement of any Letter, Patent, Trade Marks, Registered Designs or the infringement of Copyrights or other industrial or intellectual property rights.
17. Delivery and Despatch.
(a) Any time for performance of the Seller’s obligations under the Contract shall be reckoned from the date upon which the Seller receives all the necessary information and documentation to enable it to proceed with the supply of the Products or Services.
(b) Any date for delivery specified in respect of Products sold or to be sold by the Seller shall be treated only as an estimate given in good faith, and such delivery is not a term of the Contract and it is specifically hereby agreed that time for delivery is not the essence of the Contract. The Seller shall not in any circumstances howsoever arising whether as a result of its own negligence or otherwise be under any liability to the Buyer for failure to deliver by or on such date and such failure shall not entitle the Buyer to cancel or terminate this Contract.
(c) Any delivery time specified shall be extended by any period or periods during which the manufacture or delivery of the Products or other Services by the Seller in connection with the Contract is delayed due to fire, explosion, flood, storm, tempest, sabotage, strikes, official and unofficial riot, invasion, acts of war (whether war has been declared or not), shortage of labour, power or materials, delay by the Seller’s suppliers or carriers, civil commotion, accidents, plant breakdown, technical difficulties, seizure, or other action by or in compliance with an order of an apparently competent authority and any other event of circumstances beyond the control of the Seller. Notwithstanding such delays the Buyer shall take and pay for at the rate of the Contract price such of the Products as shall be tendered by the Seller and are ready for delivery.
(d) From the time of the despatch of the Products from the Seller’s premises the risk of any loss or damage to or any deterioration of the Products from whatever cause whether as a result of the Seller’s negligence or otherwise shall be borne by the Buyer. Delivery shall be deemed to take place when the Products are despatched from the Seller’s works. Products shall be deemed to have been despatched in full quantity and in good condition unless particulars of the shortage or defect alleged are notified in writing by the Buyer to the Seller within 7 days of the date of despatch as shown on the Sellers delivery note.
(e) The Buyer shall be responsible for paying the Seller’s carriage and insurance charges unless it shall make its own arrangements with the agreement of the Seller prior to the Seller arranging carriage. If the Products shall be collected by the Buyer or by a carrier pursuant to arrangements made by the Buyer, delivery shall be deemed to take place on collection.
(f) Save as expressly provided in these conditions the Seller shall not be liable in any manner whatsoever in connection with any damage to or loss of the Products in transit.
18. Reservation of Title.
(a) Notwithstanding delivery and passing of title, the Products shall remain the property of the Seller until such time as the Buyer shall have paid to the Seller the agreed contract price, including any carriage and insurance costs and all other amounts owed by the Buyer to the Seller in respect of any other contracts for the sale of Products.
(b) Until such payment the Buyer shall be in possession of the Products as bailee fiduciary owner for the Seller, and shall (i) take proper care of the Products and take all reasonable steps to prevent any damage to or deterioration of them (ii) keep the goods free from charge, lien or other encumbrance (iii) store the Products in such a way to show clearly that they belong to the Seller.
(c) The provision of clause 18 shall not prevent the Buyer from fixing the Products to any other Products or selling the Products in the normal course of business but in the event of the sale to the extent of the Buyer’s indebtedness to the Seller in respect of the Products, the Buyer shall hold the proceeds of sale or the right to receive the same on trust for the Seller and shall, at its request either (i) place the proceeds of sale in a separate account of the Buyer in such a way as to be identifiable as in the beneficial ownership of the Seller, or (ii) assign the rights to receive the proceeds of sale to the Seller.
(d) The Seller may repossess and re-sell any Products to which it has retained title and the Seller’s consent to the Buyer’s possession of the Products and any rights the Buyer may have to possession of the Products shall in any event cease (i) if any sum owed by the Buyer to the Seller is not paid to the Seller by the date when it is due;
or (ii) the Buyer commits a breach of any contract with the Seller; or (iii) if one of the events in clause 18 sub-section (e) occurs. For this purpose the Buyer hereby grants an irrevocable right and licence to the Seller and its servants and agents to enter upon the Buyer’s premises, with or without vehicles, during normal working hours.
(e) Without prejudice to the generality of the foregoing if prior to despatch of the Products the Buyer is adjudicated bankrupt or has a receiving order made against it or, being a company, pass a resolution for winding up or suffer a winding up order to be made against it or have a receiver appointed of the whole or any part of its assets the Seller may elect not to deliver the Products except against payment in cash of the purchase price of the Products in full.
19. Data Protection.
(a) Each term used in this condition 19 shall have the meaning given in the Data Protection Laws unless otherwise stated. References to “Articles” in this condition 1 shall mean the Articles of the GDPR.
(b) The Seller acknowledges and agrees that for the purposes of this Contract the Buyer is the Data Controller and the Seller is a Data Processor in respect of all Personal Data processed pursuant to this Contract.
(c) The Customer shall comply with its obligations under Data Protection Laws in respect of all Personal Data Processed pursuant to this Contract.
(d) The Seller shall use its reasonable commercial endeavours to process Personal Data only for the purpose of performing the Services during the Term and on the documented instructions that the Buyer may give to it from time to time and in compliance with the Data Protection Laws.
(e) The Seller shall use its reasonable commercial endeavours to: (i) not do anything that would put the Buyer in breach of the Data Protection Laws;(ii) put in place, before undertaking any processing, and maintain thereafter appropriate technical and organisational measures in accordance with Articles 5 and 32; (iii) provide the Buyer with such assistance as the Buyer reasonably requires to ensure compliance with Articles 32 to 36 (inclusive), taking into account the nature of the processing and the information available to the Seller; (iv) maintain a record of all of its processing activities under or in connection with this Contract and of the measures implemented under this condition 19 in accordance with the requirements of Article 30; (v) provide the Buyer with such information as the Buyer reasonably requests from time to time to enable the Buyer to satisfy itself that the Seller is complying with its obligations under this condition 19(e), provided that the Buyer shall not make more than 2 requests in any rolling 12-month period; (vi) not cause or allow Personal Data to be transferred to and/or otherwise processed in a Non-adequate Country without the Buyer’s prior written approval; (vii) not transfer Personal Data to, or permit the processing of Personal Data by, any third party except: (1) with the Buyer’s prior written consent (such consent not to be unreasonably withheld or delayed); and (2) where the Buyer has given such consent, the Seller has entered into a written contract with that third party under which that third party agrees to obligations that are equivalent to the Seller’s obligations set out in this condition 19(e) unless required to do so by Applicable Law in which case the Seller shall (to the extent permitted by Applicable Law) give the Buyer written notice of such requirement; (viii) at any time upon request, and in any event upon termination or expiry of this Contract, deliver up or securely delete or destroy all Personal Data in the Seller’s possession (except for such Personal Data which it is required to keep in compliance with Applicable Law and/or the Data Protection Laws); (ix) provide all assistance reasonably requested by the Buyer from time to time in undertaking any data protection impact assessments and consultation with a supervisory authority that the Buyer may reasonably decide to undertake; and (x) ensure its employees are subject to binding obligations of confidentiality in respect of Personal Data processed under this Contract.
(f) If the Seller becomes aware of or suspects a Personal Data Breach it shall notify the Buyer without undue delay and in any event within 72 hours of becoming aware of it. The Seller shall, at the Buyer’s cost, provide all assistance reasonably requested by the Buyer to ensure that the Buyer complies with its obligations under Articles 33 and 34. The Seller shall take all reasonable steps to mitigate any risks of a Personal Data Breach occurring in the future.
(g) If for any reason the Seller is unable to provide any of the information set out in Article 33 within the timescale referred to in condition 19(f), it shall provide a written explanation to the Buyer as soon as possible.
(h) The Seller shall not disclose any information about or in connection with any unauthorised or unlawful processing or accidental loss or destruction of, or damage to, Personal Data, other than: (i) to the Buyer; (ii) with the Buyer’s express prior written approval; or (iii) as required to be disclosed by Applicable Law.
(i) The Seller shall use its reasonable commercial endeavours to procure that all Seller Personnel and any sub-processors who have access to Personal Data in connection with this Agreement comply with the terms of this condition 19.
20. General Lien.
Without prejudice to other remedies the Seller shall in respect of all unpaid debts due from the Buyer have General Lien on all goods and property in its possession (whether worked on or not) and shall be entitled on the expiration of 14 days notice to the Buyer to dispose of such goods and property as it thinks fit and to apply any proceeds towards such debts.
21. Guarantee And Warranty.
(a) If within the period after delivery hereinafter stated ‘the Guarantee Period’ the Buyer gives notice in writing to the Seller of any defect, default or error in the Products which shall arise under the proper use from faulty material or workmanship then the Seller if it accepts that the Products are so defective shall with all possible speed replace or repair the Products so as to remedy the defect, default or error without cost to the Buyer which remedy shall constitute an entire discharge of the Seller’s liability under this Guarantee. If the Buyer shall carry out any repairs, attempted repairs or modifications to the Products without the written authority of the seller then the Seller’s liability under this Guarantee shall automatically cease.
(b) The Buyer shall as soon as reasonable practical after discovering any such defect, default, error or failure return the defective Products or parts thereof to the Seller at the Buyer’s risk and expenses unless it has been agreed in writing between the parties that the necessary replacement or repair shall be carried out by the Seller on the Buyer’s premises.
(c) The Guarantee period herein referred to shall be twelve months from the date of despatch of the Products
22. Defective Products and Consequential Loss.
Items represented by the Buyer to be defective shall not form the subject of any claim for work done by the Buyer or for any actual or consequential loss, damage or expenses whatsoever arising directly or indirectly from such defects but such products if returned to the Seller and accepted by it as defective will at the request of the Buyer and if practicable be replaced as originally ordered. Defects, defaults or errors in quality or dimensions in any delivery shall not be a ground for cancellation of the remainder of the Order or Contract.
All disputes, differences or questions at any time between the parties as to the construction of the Contract or as to any matter or thing arising out of the Contract or in any way connected therewith shall be referred to the arbitration of a single Arbitrator who shall be agreed between the parties or who failing such agreement shall be appointed at the request of either party by the President for the time being of the Mechanical Handling Engineers Association. The arbitration shall be in accordance of the Arbitration Act 1950 or any Statutory modifications or re-enactments thereof for the time being in force.
24. Law of Contract.
Unless otherwise agreed between the parties in writing the Contract shall be subject to and construed in accordance with English Law.
If any of these Conditions is held to be invalid, illegal or unenforceable in any respect, whether in whole or in part, such invalidity, illegality or unenforceability shall not prejudice the effectiveness of the rest of these conditions or the remainder of any part of the conditions affected.