STANDARD CONDITIONS OF SALE
In these Conditions “Company” means Trackwork Limited
All contracts for the sale of goods by us shall incorporate these conditions insofar as such conditions are not varied by any special terms or conditions agreed in writing between the parties and any terms and conditions in the Buyer’s order which are inconsistent with these Conditions shall have no effect. Any variation of the Contract will become binding only if confirmed in writing by the parties.
The Company’s employees or agents are not authorised to make any representations concerning the goods unless confirmed by the Company in writing. In entering into a contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
Any advice or recommendation given by the Company or its employees or agents to the Buyer or its employees or its agents as to the storage, application or use of the goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Company shall not be liable for any such advise or recommendation which is not so confirmed.
Any typographical, clerical or other error or omission in any literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
The Buyer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Company any necessary information relating to the goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
Dates or periods for delivery stated in the Contract are only approximate and not essential terms unless in the circumstances of any particular case the parties agree guaranteed delivery dates and the Contract so provides.
The Company shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay, and performing, or any failure to perform, any of the Company’s obligations in relation to goods, if the delay or failure was due to any cause beyond the Company’s reasonable control (including, without limitation, any strike, lockout or other industrial action) and the time for performance of the Company’s obligations shall be extended accordingly.
Save as provided in these Conditions and except where the goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) any condition warranty or statement whether as to the quality of the goods or their fitness for any purpose or otherwise and whether express or implied by statute, custom of the trade or otherwise is hereby excluded to the fullest extent permitted by law unless it is accepted in writing by the Company.
9.1 Where the goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions.
9.2 Nothing in these Conditions shall restrict or exclude liability for death or personal injury caused by the negligence of the Company.
10.1 The Buyer shall inspect the goods on delivery and shall within three days of delivery notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with description or sample.
10.2 The Buyer shall afford the Company an opportunity to inspect the goods within a reasonable time following delivery and before any use is made of them. If the Buyer fails to comply with these provisions the goods shall be conclusively presumed to be in accordance with the Contract and free from any defect or damage which would be apparent on a reasonable examination of the goods and the Buyer shall be deemed to have accepted the goods.
10.3 If the goods are not in accordance with the Contract for any reason the Buyers sole remedy shall be limited to the Company making good any shortage by replacing such goods or if the Company shall elect, by refunding a proportionate part of the Contract price.
The Company’s liability to the Buyer, whether for any breach of contract or otherwise shall not in any event exceed the Contract price and the Company shall be under no liability for any direct loss and / or expense or indirect loss and / or expense suffered by the Buyer or liability to third parties incurred by the Buyer.
Where the Contract provides for delivery of the goods elsewhere than at the Company’s works, the Company will entertain a claim by the Buyers in respect of loss or damage in transit only if the Buyer;
give written notice to the Company within 21 days after the date of the Company’s advice note or other notification of the dispatch of the goods in case on non-delivery, or within 3 days after delivery of the goods in any other case and
where the goods are consigned by an outside carrier, comply in all respects with the carrier’s conditions of carriage for notifying claims for loss or damage in transit.
The Company shall be entitled, without prejudice to its other rights and remedies, either to terminate wholly or in part any or every contract between itself and the Buyers or to suspend any further deliveries under any of every such contract in any of the following events;
if the Buyer’s have failed to take delivery of any goods under any contract between them and the Company otherwise than in accordance with the Buyers contractual right.
if the Buyer makes any voluntary arrangement with its creditors or being an individual or firm becomes bankrupt or being a company becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or if a receiver is appointed of any of the property or assets of the Buyer.
The Company shall be entitled to exercise its aforesaid rights of
termination or suspension at any time during which the event or
default giving rise thereto has not ceased or been remedied and in the event of any such suspension, the Company shall be entitled as a condition or resuming delivery under any contract between it an the Buyers to require prepayment of such security as it may require for the payment of the price of any further delivery.
The Buyers shall not be entitled to withhold payment of any amount payable under the Contract to the Company because of any disputed claim for the Buyers in respect of faulty goods or any other alleged breach of the Contract, nor shall the Buyers be entitled to set-off against any amount payable under the Contract to the Company any monies which are not then presently payable by the Company or for which the Company disputes liability.
The price payable by the Buyers for each delivery shall be the Company’s price ruling at the date of dispatch to which shall be added any Value Added Tax and any other tax or duty relating to the sale or delivery of the goods chargeable to the Company unless otherwise expressly stated in the Contract, the price of such delivery shall be paid in full and received by the Company by the last day of the month following the month in which the goods were dispatched. The Company shall be entitled to charge interest on any amount more than 30 days overdue. Such interest shall be calculated on a day-to-day basis on the amount outstanding at the rate of 8 % above the base rate for the Bank of England.
Title to any consignment of goods or any part thereof delivered by the Company to the Buyer pursuant to any order shall not pass to the Buyer but shall remain with the Company until full payment in respect of each such consignment has been received by the Company. Pending payment for each such consignment as aforesaid the Buyer shall keep the goods as the Company’s bailee and store the goods separately clearly identifying them as the Company’s and returning them to the Company on request.
Notwithstanding Clause 14 hereof, the risk in the goods comprised in any order shall pass to the Buyer on delivery or as soon as the Company invoices the Buyer for them (if sooner).
Unless otherwise agreed, pallets and returnable packages used for delivery of goods shall remain the Company’s property and must be returned to the Company in the same condition as received by the Buyer.
No waiver by the Company of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
REVISED FROM 20 SEPTEMBER 2000
GENERAL CONDITIONS OF CONTRACT
“The Company” Trackwork Ltd
“Order” the order for the supply of goods or services (or goods and services) to the Company
“Seller” the person, firm or company to whom the order is given for the supply of goods
“Contractor” the person, firm or company to whom the order is given for the supply of services
“Supplier” the Seller or Contractor or both (as the case may be)
“Contract” a) the agreement between the Company and the Seller for the supply of goods or
as the case may be
“the General Conditions” the terms and conditions set out herein
“the Special Conditions” the terms and conditions (if any) contained or expressly referred to in the Order
“the Conditions” the Special Conditions and General Conditions
“the Specifications” any specifications drawings samples or descriptions furnished by the Company to the
Supplier prior to the Contract or
furnished by the Supplier to the Company and accepted in writing by the Company
(whether in the order or otherwise)
“goods” chattels of any description and plant and machinery whether or not affixed or annexed to land
“servicing” (in relation to goods) includes any processing, treatment and/or repair of goods
The masculine includes the feminine and the neuter and vice versa; and the singular includes the plural and vice versa
COMPANY’S CONDITIONS TO PREVAIL
Unless otherwise expressly agreed in writing by the Company
In the event of any conflict between the Special Conditions and the General Conditions the Special Conditions shall prevail.
Any written acceptance of the Order or delivery of any of the goods to which the Order relates, or supply of any of the services to which the Order relates, by or on behalf of the Supplier shall constitute acceptance by the supplier of the Contract.
VARIATION OF TERMS
No variation of the Contract or any of the Conditions shall become binding unless confirmed in writing by the Company.
The price stated in the contract is a fixed price and shall not be increased for any reason unless expressly agreed in writing between the Company and the Supplier.
The price specified in the Order, or otherwise in the Contract shall (unless the contrary is expressly stated therein) include all costs and charges of the Supplier for its due performance of the contract and all its obligations thereunder.
The time (if any) specified in the Contract for the supply of goods or services shall be of the essence of the contract.
The Seller warrants that it will be at the time of delivery have good title, free from any charge, lien or encumbrance to all goods sold pursuant to the Contract.
DELIVER AND PACKAGING OF GOODS
The Seller shall be responsible for the delivery of the goods to the Company at the place specified for delivery in the Order or otherwise in the Contract (or, if none is specified, at the Company’s principal place of business) and all costs of carriage, insurance and freight shall be borne by the Seller.
The Company shall not be charged for packaging unless the Special Conditions otherwise expressly provide if the Special Conditions do so provide then (subject to any express contrary provision in the Special Conditions).
such charge shall be on terms that the Company is given full credit therefore on return of the packaging in good condition (fair wear and tear excepted) and
the Company’s delivery note or other receipt signed by or on behalf of the Seller shall be conclusive evidence that the packaging has been returned in good condition.
All goods and services supplied pursuant to the contract shall conform in all respects to the Specifications
All such goods shall be fit for the purposes for which, at the time of the Contract , the Company requires them and shall be fit for use in the countries in which the goods (or any products made therefrom) are, at that time, intended to be processed or sold and shall comply with any statutory or other regulations in force in those countries regarding the safety or standard of goods of that description. The Company will at the Seller’s written request (whether prior to the contract or upon reasonable notice) at any time during the performance of the contract, notify the Seller of the purposes and countries in question an in the absence of such request the Seller shall be deemed to have notice thereof.
If any goods shall fail to comply with the provisions of Condition 8, the Company may at its option return
the same to be Seller at the Seller’s risk and expense or retain the same and correct or endeavour to correct such defect at the Seller’s expense. If the Company shall retain such goods and endeavour to correct such defect but it shall subsequently prove impracticable so to do, the Company shall remain entitled to return the same at the Seller’s risk and expense. The foregoing rights shall be without prejudice to any other right or remedy that the Company may have.
If the servicing of any goods by the Contractor fails to conform to the Specifications or is otherwise defective then:-
The foregoing rights shall be without prejudice to any other right or remedy that the Company may have.
1) CONTRACTOR’S RISK
Goods despatched by the Company to the Contractor for servicing shall remain from the time they leave the Company’s premises until re-delivery as instructed by the Company at the absolute risk of the Contractor in regard to any loss or damage, except only inherent vice and fair wear and tear.
CONTRACTORS OBLIGATIONS TO INSURE
Further and without prejudice to the Contractor’s aforesaid responsibility the Contractor shall at its own cost insure all goods despatched to it by the Company from the time they leave the Company’s premises until re-delivery as instructed by the Company for their full value against loss, damage or destruction resulting from any insurable risk (other than inherent vice and fair wear and tear) which can be reasonably contemplated as affecting goods. The Contractor shall if requested by the Company effect such insurance in their joint names. The Contractor shall upon request produce for the Company’s inspection the policy of insurance and receipt for premiums.
3) CONTRACTOR WORKING AT COMPANY’S PREMISES
INDEMNITY IN RESPECT OF INJURY TO PERSONS AND PROPERTY
The Supplier agrees with the Company for the benefit of the Company whose premises work is undertaken by the Supplier or its sub-contractor to indemnity and keep indemnified the Company against any liability, loss, claim or proceedings whatsoever in respect of personal injury to or death of any person or any
loss of or damage to property real or personal (including loss or damage suffered by the Company itself)
howsoever arising whether directly or indirectly out of or in connection with the performance by the Supplier of the Contract or any defect in the goods or services supplied thereunder by the Supplier or any breach by the Supplier of its obligations whether imposed by the Conditions or by law.
INFRINGEMENT OF PATENTS ETC
The Supplier shall indemnify and keep indemnified the Company against all actions, demands, cost, claims and expenses for which the Company may become liable or incur by reason of any infringement or alleged infringement in any country of any letters patent, registered design, trade mark, trade name or copyright by reason of the use of or sale of goods supplied by the Seller or by reason of the servicing of goods by the Contractor or the use or sale of goods so serviced. The Supplier shall be responsible for determining that the Specifications will not cause any such infringement and accordingly the foregoing indemnity shall apply notwithstanding that the infringement or alleged infringement arises from the terms of the Specification.
The Company may suspend for such period as it thinks fit, or its option may cancel the delivery of any undelivered balance of goods and the supply of any services provided for in the Contract if the works of the Company or any part of such works are temporarily or permanently closed down during the currency of the Contract, or the process of manufacture of the Company is stopped, delayed or impended by fire, flood, explosion, strike, lockout, war, hostilities, civil disturbances, Government or other duly authorised demand, regulation or prohibition, or by force majeure or any other cause beyond the control of the Company. In such event, no liability shall attach to the Company be reason of such modification or cancellation or the Order.
If the Contract provides for the delivery of goods by the Seller by instalments and the Seller makes default in delivery of any one or more instalments, the Company shall be entitled to treat the Contract as repudiated without prejudice to any other right or remedy that the Company may have.
ASSIGNMENT AND SUB-CONTRACTING
The Contract shall be personal to the Supplier and the Supplier shall not assign or sub-contract the whole or any part of the Contract without the prior written consent of the Company. The giving of such consent shall not release the Supplier from any of its obligations under the Contract.
INSPECTION OF GOODS OR SERVICES BEFORE DELIVERY
(1)The Company shall at all reasonable times during and after the manufacture, processing or preparation of goods to be purchased from the Seller and at all reasonable times during and after the servicing of goods to be serviced by the Contractor to be entitled to inspect and test, on the premises of the Supplier or the premises of any sub-contractor of the Supplier, any of the goods situate at such premises. The Supplier shall procure that any such sub-contractor agrees to an permits inspection and testing of goods in accordance with this Condition.
(2) If upon such inspection or testing the goods do not correspond with the Specification or other provision of the Contract in description, quality, fitness or quantity, the Company shall thereupon be entitled at its option (and without prejudice to any other right to remedy that the Company may have).
to treat the Contract as repudiated by the Supplier, or
if the Contract is for the purchase of goods, to reject such defective goods and require the Seller either to remedy the defect or supply other goods in place of the defective goods;
if the Contract is for the servicing of goods, to require the Contractor to remedy the defect or cause it to be remedied and if the Contractor does not do so, or does not do so within a reasonable time, or if it is impracticable or uneconomic to remedy such defect, then the Company shall be entitled to invoice the same to the Contractor at the full value of such goods before servicing, and in that event and upon payment in full of the amount of such invoice the goods shall become the property of the Contractor but the Company shall not be liable for the safe custody thereof.
(3)Failure of the Company to exercise its right to inspect and test goods, or (if the Company does inspect and test goods) failure by the Company to exercise rights conferred upon it by paragraph (2) of this Condition, before delivery of the goods or re-delivery of the serviced goods shall not affect the rights of the Company under Condition 9 or Condition 10.
(4)No such inspection or test, nor any failure to exercise rights conferred on the Company by paragraph (2) of this Condition, shall constitute or imply acceptance of the goods or any them.
INSOLVENCY ETC OF SUPPLIER
If the Supplier becomes insolvent or being a body corporate has passed a resolution for its winding-up (except when solely for the purpose of reconstruction) or has suffered an Order for its compulsory winding-up to be made or has had a receiver appointed or being an individual or partnership has or have suspended payment of his or their debts in whole or in part or has or have entered into any composition or arrangement with his or their creditors or has or have a receiving Order made against him or them, then the Company shall be entitled forthwith either to terminate the contract by note in writing to the Supplier or any other person in whom the Supplier’s interest under the contract has become vested or (at its option) by such notice in writing to suspend the Contract for so long as any of the aforesaid circumstances exist.
WAIVER OF BREACH
The Company shall not be prejudiced or restricted by any indulgence or forbearance extended to the Supplier and no waiver by the Company in respect of any breach shall operate as a waiver in respect of any other breach.
CANCELLATION OR MODIFICATION BY THE COMPANY
(1)If for any reason other than force majeure or other circumstance mentioned in Condition 14 or a breach of Contract by the Supplier, the Company wishes to cancel or modify the Order it shall, by notice in writing to the Supplier be at liberty to do so but on doing so will take over and pay at the agreed price for any goods the manufacture or servicing of which is completed in accordance with the terms of Contract.
(2)In relation to raw materials not processed but which are established to the satisfaction of the Company to have been irrevocably allocated by the Supplier for the purpose of the Contract, the Company will on cancellation use its reasonable endeavours to assist the Supplier to dispose of such raw materials by alternative use, disposal on the open market or (if the Company so agrees) by the Company purchasing such raw materials at their then current market value.
(3)Save as herein expressly provided, no obligation or liability shall attach to the Company by reason of such cancellation.
The Supplier its sub-contractors (if any) and their respective servants and agents shall during the performance of the Contract and at all times thereafter keep confidential and not, except so far as necessary in the due performance of the Contract, disclose to any person any trade secret or manufacturing process of the Company or any confidential information concerning the business or finances of the Company or any of its dealings transactions and affairs which may come to the Supplier’s or its sub-contractors knowledge during the performance of the Contract or in any negotiations therefore.
(1) If the Supplier fails to comply with any of these Conditions or otherwise commits any breach of the Contract then (whether or not the goods or services or any part of them have been accepted by the Company) the Company shall be entitled to any or (so far as not mutually exclusive) to any one or more, of the following remedies, namely to:-
Rescind the Contract.
Return to the Seller the goods or any part thereof, at the Seller’s expense;
Require the Seller at the Seller’s expense to replace, repair or reinstate the goods so that they comply with the terms of the Contract.
Refuse, without any liability to the Seller, to accept any further deliveries or instalments of the goods or any part thereof.
Carry out at the Seller’s expense such work as may be necessary or expedient to make the goods or any part thereof comply with the terms of the Contract.
Carry out at the Contractor’s expense such work as may be necessary or expedient to complete the services (whether to goods or otherwise) to which the Contract relates.
Claim such damages as the Company may have sustained or may sustain in consequence of any breach of
Contract on the part of the Supplier.
(2)The foregoing rights shall be in addition and without prejudice to any other right or remedy which the Company may have under the Contract or otherwise.
(3) Where by reason of any breach of the contract by the Supplier, the Supplier is under a liability to make any payment to the Company, the Supplier shall not be entitled to set off any sum due, or allegedly due from the Company to the Supplier under or pursuant to any other contract or transaction between the Company and the Supplier.
(1) The construction, validity and performance of the Contract shall be governed by the law of England.
(2) Headings are for purposes of reference only and shall not affect the construction of these Conditions.
(1) Any dispute difference or question at any time arising between the parties as to the construction of the Contract or as to any matter or thing arising therefrom or in any way connected therewith shall at the option of the Company be referred to a single arbitrator who shall be agreed between the parties or failing such agreement shall be nominated by the President for the time being of The Law Society. Any such arbitration shall be in accordance with the Arbitration Act 1950 and any statutory modification or re-enactment thereof for the time being in force.
(2) Subject as aforesaid the due forum for determination of any such dispute, difference or question shall be the High Court of Justice in England.