Purchase of Products
1. DEFINITIONS
'the Buyer' means the person or organisation placing an order with the Company subject
to these terms and conditions;
'the Company' means The Tube Creation Company Limited;
'the Delivery Date' means the date described in clause 5.1
'the Goods' means the goods which are the subject matter of the quotation.
2. GENERAL
2.1 Any Goods sold by the Company will be sold on these terms and conditions unless otherwise agreed in writing by a director of the Company.
2.2 These terms and conditions will take precedence over the Buyer's terms and conditions and will be conclusive where there is any inconsistency between the two.
2.3 These terms and conditions will supersede all previous agreements between the parties, information appearing in any sales brochure or other documentation produced by the Company.
3. PRICE
3.1 The price quoted for any Goods will, on receipt of confirmation of the Buyer's order, be confirmed in writing to the Buyer.
3.2 Any price quoted will be open to acceptance by the Buyer for a period of 21 days. After such time the Company reserves the right to re-quote for the Goods.
3.3 Prices quoted for the Goods will be given for full orders.
3.4 The Company will not be liable for any change in price between quotation and order, or order and delivery due to circumstances beyond the Company's control.
3.5 All prices quoted will be inclusive of packing, delivery to the Buyer's warehouse and exclusive of VAT unless otherwise notified by the Company to the Buyer.
3.6 Prices quoted will not include delivery to a site other than the Buyer's warehouse, for which the Company may quote and charge an additional charge.
4. PAYMENT
4.1 The Company will invoice the Buyer within 10 working days following delivery. The Company reserves the right to invoice the Buyer in advance of delivery where the Company requires payment in advance of delivery.
4.2 The Buyer shall pay the Company's invoice in full within 30 days following the end of the month during which the Buyer received the invoice. The Buyer must notify the Company of any queries within 10 days of the date of invoice. The Buyer will notify the Company in the event it fails to receive an invoice within 10 working days following delivery.
4.3 If any payment is not made in full by its due date the Company reserves the right to charge interest to the Buyer at the rate of 4% per annum above the base rate for the time being of HSBC Bank PLC on the unpaid balance (such interest to accrue on a day to day basis from any due date as well as before any judgement).
5. DELIVERY
5.1 The proposed delivery date will be agreed on confirmation of the order.
5.2 Whilst the Company will endeavour to deliver the Goods on the Delivery Date it cannot be liable for any delay in the delivery and therefore the Delivery Date should be regarded as an estimate only and may be changed by notification of the Company to the Buyer.
5.3 All standard deliveries are made by a sole driver and deliveries are made tailgate i.e. the driver may assist in unloading from the vehicle but will not be responsible for lifting or carrying the Goods into the Buyer's premises, and unless otherwise agreed at the time of order confirmation the Buyer must ensure that they have the resources available to do so.
5.4 Where Goods are delivered in instalments or by part delivery, the Buyer will not be entitled to treat the delivery of faulty Goods, or the late delivery of Goods, in one instalment or part delivery as repudiation of the entire contract.
5.5 Where a dispatch address has not been agreed and the Buyer fails to notify the Company of the address for delivery within fourteen days of having been notified that the Goods are ready for delivery, the Company shall be entitled (but not bound) to store the Goods at any location at the Buyers' expense and risk.
6. TERMINATION
6.1 The Company shall be entitled without prejudice to its other rights and remedies to terminate immediately in writing every contract it has with the Buyer or to suspend any further delivery of the Goods under any or every contract it has with the Buyer if:
6.1.1 any debt is due and payable by the Buyer to the Company and remains unpaid;
6.1.2 the Buyer has failed to provide any letter of credit, bill of exchange or any other security required by the Company;
6.1.3 the Buyer has rejected, returned or failed to take delivery of the Goods or part of them otherwise than in accordance with these Terms and Conditions;
6.1.4 the Buyer becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986;
6.1.5 the Buyer being a body corporate has:
6.1.5.1 received notice (either written or oral) that an Administrative Receiver or other Receiver or Manager is to be or has been appointed in respect of its undertaking or a material part thereof or other property or assets;
6.1.5.2 received notice (either written or oral) that a petition to wind up the Buyer is to be or has been presented under Section 124 of the Insolvency Act 1986 or otherwise or a notice (either written or oral) of a proposal to pass a Resolution to wind up the Buyer (including any proposal by the Buyer so to do);
6.1.5.3 decided to make a voluntary arrangement or composition with its creditors;
6.1.5.4 become unable to pay its debts as such expression is defined by the Insolvency Act 1986; or
6.1.5.5 received notice (either written or oral) of anything analogous to the above under foreign law or that proceedings have been instituted under foreign law.
6.1.6 the Buyer being an individual or a partnership has:
6.1.6.1 become unable to pay its debts as such expression is defined in the Insolvency Act 1986;
6.1.6.2 suspended any payment to the Company in whole or part;
6.1.6.3 proposed or entered into any composition or arrangement with his creditors;
6.1.6.4 had a receiving order in bankruptcy made against him; or
6.1.6.5 received notice (either written or oral) of anything analogous to the above under foreign law.
7. RISK AND TITLE TO GOODS
7.1 The risk in the Goods passes to the Buyer upon delivery.
7.2 Notwithstanding the passing of risk, property in the Goods shall remain vested in the Company and shall only pass from the Company to the Buyer upon full payment being made of all sums due to the Company from the Buyer in respect of those Goods.
7.3 If the Goods are sold by the Buyer to a third party who then has a valid title to the Goods the Buyer shall be the trustee for the Company of the proceeds of such sale or to the claim for such proceeds and the Buyer shall place such proceeds in a separate bank account and the Company's rights under this sub-clause shall attach to the proceeds of such sale and nothing shall constitute the Buyer the agent of the Company for the purposes of any such sub-sale.
7.4 Unless and until payment in full is received the Company may at any time repossess the Goods and enter the Buyer's premises and remove the Goods (and dispose of the same as it may decide) and the Buyer shall keep such Goods as fiduciary agent and bailee for and on behalf of the Company and shall keep such Goods separate and identifiable for this purpose.
7.5 Any implied authority that the Buyer shall be entitled to sell the Goods and pass property in them to third parties in the normal course of its business or sell such products will continue until otherwise notified in writing by the Company or until the happening of any of the events set out in Clause 6.
8. LIABILITY
8.1 The Company undertakes that if within twelve months from the date of dispatch from the Company's premises the Goods or part of them are proved to the Company's satisfaction to be defective or materially not in accordance with the order acknowledgement the Company will repair or replace the Goods at its discretion or part of them at the address where the Goods were previously delivered provided that the
Buyer shall give notice to the Company of any alleged defect or non-compliance within that period of twelve months and shall allow the Company (or its agents employees or representatives) to inspect the Goods and investigate the complaint. The Buyer must not return the Goods or part of them to either the Company or the manufacturer unless the Company has agreed in writing to accept their return to itself or to the manufacturer.
8.2 Save where liability may not be excluded or limited by contract between the contracting parties the Company shall not be liable for loss of profit, damage or for any expenditure incurred on the Goods supplied or any indirect, consequential or special loss or damage sustained by the Buyer by reason of any breach by the Company arising from any act or default of the Company howsoever arising.
8.3 Subject to clause 8.2 the Company's liability in contract, tort (including negligence), stature of otherwise for all its acts or omissions of the Company or its employees shall be limited to the lesser of the value of the order to which the claim relates or �10,000 (ten thousand pounds).
8.4 If the Goods supplied by the Company to the Buyer's design or specification infringe or are alleged to infringe any patent, registered design right, copyright or other intellectual property right, the Buyer will indemnify the Company in full against all damages and costs (including legal costs) incurred by the Company as a result of such infringement or alleged infringement.
9. FORCE MAJEURE
9.1 Should the manufacture, supply or delivery of any of the Goods be prevented at or from the manufacturer, or any independent carrier be prevented or hindered directly or indirectly from transporting the Goods due to any other cause whatsoever beyond the reasonable control of the manufacturer or the Company then any estimated or expressly agreed Delivery Date of the Goods shall be extended for a reasonable period of timehaving regard to the effect of the delaying cause on the manufacture or supply of the Goods.
9.2 If the period of such extension in sub-clause 9.1 exceeds three months the Company may after or during this period of the extension cancel any orders not delivered.
10. WITHHOLDING PAYMENT
10.1 The Buyer shall not at any time withhold payment for any Goods supplied to it by the Company by way of set-off in connection with any dispute claim or counter-claim the Buyer has with or has made against the Company or the manufacturer.
11. SAFETY INSTRUCTIONS
11.1 The Buyer undertakes with the Company that it will ensure compliance so far as is reasonably practicable by its employees agents licensees and customers with any instructions given by the Company for the purpose of ensuring that the Goods will be safe and without risk to health when properly used and will take any other steps or precautions having regard to the nature of the Goods as are necessary to preserve the health and safety of persons handling, using, assembling or disposing of them.
12. CANCELLATION BY THE BUYER
12.1 The Buyer has no right to cancel or postpone any contract made under these terms and conditions after the Company has issued its order acknowledgement.
12.2 If the Buyer purports to cancel or postpone any contract (without prejudice to any other rights of the Company in connection with such purported cancellation or postponement) the Buyer shall indemnify the Company for all costs, charges and expenses incurred by the Company, including loss of profit by reason of such cancellation or postponement.
13. LEGAL INTERPRETATION
13.1 Any contract to which these terms and conditions apply shall be governed and construed in accordance with English Law and any dispute arising out of or in connection with such contract shall be determined exclusively by the English Courts.
14. SEVERANCE AND WAIVER
14.1 In the event of any part of these terms and conditions being ineffective for any reason the remainder thereof shall constitute the terms and conditions binding upon the parties.
14.2 Failure or neglect by the Company to enforce at any time any of the terms and conditions shall not be construed as nor be deemed to be a waiver of the Company's rights hereunder nor shall such failure or neglect in any way affect the validity of the whole or any part of these terms and conditions and the Company's right to take subsequent action shall not be prejudiced thereby.
15. NOTICE
15.1 Any notice, approval or other communication to be given either to the Company or to the Buyer shall be delivered or sent by first class post to the Company at its registered office address or to the Buyer at the address on the order. Any such notice, approval or other communication shall be deemed to have been served if delivered at the time of delivery or if posted at the expiration of forty-eight hours after the envelope containing the same shall have been put into the post and in proving such service it shall be
sufficient to prove that delivery was made or that the envelope containing such notice was properly addressed and posted as a pre-paid first class recorded delivery letter.
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