“Buyer” means the person firm or company who buys
or agrees to buy the Goods from the Seller;
“Buyer’s Premises” means the Buyer’s premises
detailed on the quotation given by the Seller to the Buyer in
respect of the Goods;
“Delivery Date” means the date specified by the Seller
when the Goods are to be delivered;
“Conditions” means these terms and conditions of sale;
“Contract” means the contract for the sale by the
Seller and purchase by the Buyer of Goods;
“Goods” means all goods supplied by the Seller to
the Buyer pursuant to the Contract;
“Price” means the price of the Goods plus VAT plus
Additional Charges as referred to in Conditions 6.3 and 4.8;
“Seller” means BEXHILL STEEL WORKS LTD.
whose registered office is at 30-34 NORTH STREET, HAILSHAM, EAST
SUSSEX BN27 1DW;
“Surcharge” means the sum of £10.00 (ten pounds);
“Wasted Time Rate” means the charge for wasted time
at the Seller’s standard rate for wasted time of £1
(one pound) per minute up to and including 30 (thirty) minutes
and thereafter at a charge of £2 (two pounds) per minute,
or such other charge as notified to the Buyer from time to time;
“Writing” includes facsimile transmission but excludes
writing on the screen of a visual display unit or other similar
2. BASIS OF SALE
2.1 These Conditions shall apply to the sale by the Seller of
all Goods purchased by the Buyer and these Conditions shall govern
the contract to the exclusion of any other terms and conditions
introduced or submitted by the Buyer.
2.2 No variation of these Conditions may be given by any of the
Seller’s employees unless confirmed in writing by an authorised
director of the Seller and no collateral or supplemental contract
may be made or construed unless confirmed in writing by an authorised
director of the Seller on the Seller’s official stationery.
Any tenders or quotations submitted to the Buyer shall remain
valid for the period stated therein, but if no period is specified
such tenders and quotations shall be valid for  days from
the date thereof. All tenders and quotations shall be subject
to these Conditions. Any tenders or quotations will not constitute
an offer and the Contract shall be made when the Seller acknowledges
the order placed by the Buyer in writing and not before. Where
the Seller acknowledges or confirms the details of the Contract
in writing, the Buyer shall be under a duty to bring any discrepancies
to the Seller’s notice immediately, and if the Buyer fails
to do so, the Buyer shall, if the Seller so elects, be bound by
the details contained mentioned or referred to in the written
confirmation of the Contract. Any typographical, clerical or other
error or omission in any sales literature, quotation, price list,
acceptance of offer, invoice or other documentation or information
issued by the Seller shall be subject to correction without any
liability on the part of the Seller. The Seller’s employees
or agents are not authorised to make any representations concerning
the Goods unless confirmed by an authorised director of the Seller
in writing. In entering into the Contract the Buyer acknowledges
that it does not rely on any such representations which are not
so confirmed, save that nothing in these Conditions shall exclude
the Sellers liability for fraudulent misrepresentation. No order
which has been accepted by the Seller may be cancelled by the
Buyer except with the agreement in writing of the Seller and on
terms that the Buyer shall indemnify the Seller in full against
all loss (including loss of profit), costs (including the cost
of all labour and materials used), damages, charges and expenses
incurred by the Seller as a result of cancellation.
2.9 The Seller reserves the right to make any changes to the Goods:-
2.9.1 which are required so that the Goods conform with any applicable
statutory or EU requirement; or
2.9.2 where such changes to the Goods do not materially affect
the quality or performance of the Goods.
Any Goods supplied by the Seller must be handled correctly. The
Buyer must ensure that all appropriate safety precautions are
taken and that its staff are aware of and comply with all storage
and usage instructions.
4.1 Unless otherwise agreed by the Seller in writing, delivery
shall take place at the Buyer’s Premises. The Seller shall
reasonably endeavour to deliver the Goods to the Buyer’s
Premises or such other address as may be agreed between the parties
in writing on the date indicated by the Seller or the date agreed
between the parties, but the time of delivery or performance shall
not be of the essence and if despite those endeavours, the Seller
is unable for any reason to fulfil any delivery of the Goods on
the date so indicated, the Seller shall not be deemed to be in
breach of contract or have any liability to the Buyer. The Seller
shall notify the Buyer when the Goods are ready for delivery.
In the event that the Buyer shall not be able to take delivery
of the Goods within  working days from the date of receipt
of such notification, the Seller shall be entitled, but not obliged,
to arrange storage of the Goods until actual delivery and charge
the Buyer for the reasonable costs (including insurance) of storage.
The Buyer shall provide the Seller with clear delivery instructions
in the event that the Seller agrees to deliver the Goods to any
point other than the Seller’s premises. Upon delivery the
Buyer will sign a delivery note which will be conclusive evidence
that delivery of the Goods has been made.
4.5 The Seller shall have the right to deliver any Goods ordered
4.6 Failure by the Seller to deliver any one or more of the instalments
in accordance with these Conditions or any claim by the Buyer
in respect of the Goods delivered in any one or more instalments
shall not entitle the Buyer either to treat the Contract as a
whole as repudiated or to reject or refuse to take delivery of
any of the Goods delivered in any other instalment.
4.7 If the Seller fails to deliver the Goods (or any instalment
thereof) for any reason other than any cause beyond the Seller’s
reasonable control or the Buyer’s fault, and the Seller
is accordingly liable to the Buyer, the Seller’s liability
shall be limited to the excess (if any) of the cost to the Buyer
(in the cheapest available market) of similar goods to replace
those not delivered over the Price of the Goods.
4.8 The Buyer shall be ready to accept delivery on the agreed
Delivery Date and unless the Seller agrees otherwise, the Seller
shall unload the Goods. The Buyer shall ensure that at least one
representative is available to assist the Seller during the unloading
of the Goods and the Buyer shall be charged the Wasted Time Rate
and any other expenses incurred by the Seller (“Additional
4.8.1 wasted time for any delay;
4.8.2 each repeat delivery where the Seller or Seller’s
carrier leaves the delivery point and subsequently returns to
the delivery point with the Goods as a result of the Buyer’s
inability or unwillingness to accept delivery and/or delay in
unloading the Goods and/or the Buyer’s failure to provide
a representative to assist the Seller in the unloading of the
Goods. The Buyer shall notify any loss of or damage to the Goods
in writing to the Seller and to the carriers (if applicable) within
3 days of the Delivery Date in respect of any damage of the Goods
and within 10 days of the Delivery Date in respect of any loss
of the Goods, which will enable the Seller to comply with the
carrier’s conditions affecting such loss or damage. Where
Goods are delivered by carrier, unless the Goods are checked on
receipt, the carrier’s documentation shall be endorsed “unexamined”.
4.10 If the Buyer fails to take delivery of the Goods (otherwise
than by reason of the Seller’s fault) or fails to give the
Seller adequate instructions for delivery then, without prejudice
to any other right or remedy available to the Seller, the Seller
4.10.1 store the Goods until actual delivery and charge the Buyer
for the reasonable costs (including insurance) of storage and
the Goods shall remain in all aspects at the Buyer’s risk;
4.10.2 sell the Goods at the best price readily obtainable and
(after deducting all reasonable storage and selling expenses)
charge the Buyer for any shortfall below the Price under the contract;
be entitled to full payment in respect of the Goods refused; without
prejudice to any right on the Seller’s part to damages or
payment in respect thereof, the Seller shall be entitled to cancel
any further consignments under the contract.
Risk of damage to or loss of the Goods shall pass to the Buyer
at the time of delivery, or if the Buyer wrongfully fails to take
delivery, the time when the Seller has tendered delivery of the
6.1 The Price for the Goods shall be the price specified by the
Seller in the quotation and unless otherwise stated prices are
6.1.1 exclusive of Value Added Tax (which the Buyer shall be additionally
liable to pay to the Seller); and
6.1.2 on an Ex-Works basis.
6.2 Where the Seller is required to deliver the Goods on any basis
other than ExWorks unless any specific fee or charge is agreed
by the Buyer with the Seller, the Seller reserves the right to
charge a reasonable fee to the Buyer for the cost of any carriage
and/or other expenses incurred by the Seller in relation to the
delivery of the Goods (“Additional Charges”).
6.3 The Buyer shall bear all additional costs incurred by the
Seller on account of any materials or designs supplied by the
Buyer requiring any additional process not taken into account
indetermining the Price.
7. PAYMENT TERMS
7.1 The payment terms in this Condition apply save to the extent
that they are inconsistent with any specific payment terms agreed
in writing between the Seller and the Buyer.
7.2 The Buyer shall pay the Price of the Goods and any Additional
Charges in accordance with the payment terms set out on the quotation.
7.3 The Seller shall be entitled to invoice the Buyer for the
Price of the Goods on or at any time before despatch of the Goods
or any instalment thereof.
7.4 The Buyer shall make payment for the Price of the Goods in
sterling, unless agreed otherwise in writing. Any payment received
by the Seller in any other currency will not be deemed to be payment
for the Goods in question.
7.5 Where the Buyer makes payment for the Goods by cheque the
Seller reserves the right to charge a Surcharge in the event that
any cheque rendered in payment of the Sellers invoice is initially
7.6 Unless the Seller agrees that Condition 7.7 shall apply the
Buyer shall pay each invoice from the Seller on demand.
7.7 Where the Seller agrees that this Condition 7.7 shall apply
the Buyer shall pay each invoice from the Seller within 30 days
of the date the Seller’s invoice is issued.
7.8 In the event that the Buyer fails to pay any invoice from
the Seller by the due date, all invoices issued to the Buyer by
the Seller in respect of any goods sold or supplied pursuant to
any other contract shall immediately fall due for payment and
any credit offered or extended by the Seller to the Buyer in respect
of the same shall be cancelled forthwith.
|7.9 The Seller’s invoices shall
be payable in accordance with these Conditions, notwithstanding
that delivery may not have taken place and the property in the Goods
may not have passed to the Buyer. The time of payment of the Seller’s
invoices shall be of the essence of the Contract.
7.10 If the Buyer fails to make payment on the due date then, without
prejudice to any other right or remedy available to the Seller:
7.10.1 the Seller shall be entitled to charge the Buyer interest
(both before and after any judgement) on the amount unpaid, at the
rate of 3% per annum above the Seller’s bankers base rate
current from time to time; and
7.10.2 the Seller shall be entitled to withhold delivery of any
Goods agreed to be sold by the Seller to the Buyer or any instalment
thereof (being the subject of the contract or any other contract)
until the overdue payment is made in full.
8.1 Notwithstanding delivery and the passing of risk in the Goods,
or any other provision of these Conditions, title in the Goods shall
not pass to the Buyer until the Seller has received in cash or cleared
funds payment in full of the Price of the Goods and all other goods
agreed to be sold by the Seller to the Buyer for which payment is
8.2 Until such time as title in the Goods passes to the Buyer, the
Buyer shall hold the Goods as the Seller’s fiduciary agent
and bailee, and shall keep the Goods separate from those of the
Buyer and third parties and properly stored, protected and insured
and identified as the Seller’s property, but shall be entitled
to resell or use the Goods in the ordinary course of its business.
8.3 Until such time as the title in the Goods passes to the Buyer,
the Seller shall be entitled at any time to require the Buyer to
deliver up the Goods to the Seller and if the Buyer fails to do
so forthwith, to enter upon any premises of the Buyer or said party
where the Goods are stored and mark identify and repossess the Goods.
8.4 The Buyer shall not be entitled to pledge or in any way charge
by way of security for any indebtedness any of the Goods which remain
the property of the Seller, but if the Buyer does so all monies
owing by the Buyer to the Seller shall (without prejudice to any
other right or remedy of the Seller) forthwith become due and payable.
9. WARRANTIES AND LIABILITY
9.1 Subject to the Conditions set out below and clause 10.2 subject
to the proviso that the Seller shall be under no liability arising
from failure to follow the Seller’s or the manufacturer’s
instructions (whether oral or in writing), inappropriate storage,
improper use, inadequate maintenance or misuse of the Goods, the
Seller warrants that:-
9.1.1 the Goods will correspond with the Seller’s specification
for them on delivery;
9.1.2 save as provided in and subject to the provisions in sub-clause
9.1.3 below (unless otherwise agreed between the parties) the Goods
will be free from material defects for 3 years from the Delivery
9.1.3 this warranty does not cover wear items that are listed in
the Operations Guide relating to the Goods.
9.2 The Buyer shall be under a duty to inspect the Goods in accordance
with the provision of clause 4.9. In the event of any patent defect
the Buyer shall inform the Seller of such defect immediately on
discovery but in any event within [14 days] of delivery. In the
event of a latent defect being discovered, the Buyer shall inform
the Seller of such defect immediately on discovery of the same.
Any claim for breach of warranty by the Buyer shall not be accepted
by the Seller unless the Buyer notifies the Seller in writing of
the nature of the claim within the time limit specified within this
9.3 The Seller shall not be liable for any defect in the specification
or performance of the Goods
if such defect is due to inaccurate or insufficient information
instructions or drawings being supplied to the Seller by the Buyer
(or agent/employee/representative thereof) at the request of the
Seller or otherwise.
9.4 Any warranty given in these Conditions shall not apply to any
modification and/or repair carried out to the Goods without the
Seller’s prior approval in writing.
9.5 Subject as expressly provided in these Conditions, all warranties
conditions or other terms implied by statute or common law are excluded
to the fullest extent permitted by law.
9.6 The Buyer shall not be entitled to reject the Goods where the
alleged defect or breach of contract is so slight that it would
be unreasonable for the Buyer to reject the Goods.
9.7 Where any valid claim in respect of the Goods is made by the
Buyer the Seller shall be entitled to replace or repair the Goods
(or the part in question), at the Seller’s sole discretion,
refund to the Buyer the price of the relevant Goods (or a proportionate
part of the price for the relevant Goods), and the Seller shall
have no further liability to the Buyer. The Buyer acknowledges that
any such valid claim is to be assessed and resolved in accordance
with this Condition by the Seller working in conjunction with Came
Cancelli Automatici Spa (the manufacturer).
9.8 The Seller’s liability in connection with the sale of
the Goods and the provision of the Services to the Buyer shall be
9.8.1 in respect of death or personal injury, the Seller’s
liability shall be unlimited;
9.8.2 in respect of physical damage to or loss of the Buyer’s
tangible property to the extent that it results from the wilful
default or negligence of the Seller, its employees, agents or contractors
the Seller’s liability shall be limited to an amount of £5
million in respect of each incident or series of connected incidents;
9.8.3 in respect of all other direct loss (whether in contract,
tort, or otherwise) the Seller’s liability shall not exceed
£5 million; and
9.8.4 in respect of any loss goodwill or for any type of consequential,
special or indirect loss or damage the Seller’s liability
shall be nil.
9.9 The Seller shall not be liable to the Buyer nor be deemed to
be in breach of contract by reason of any delay in performing, or
any failure to perform, any of the Seller’s obligations in
relation to the contract if the delay or failure was due to any
cause beyond the Seller’s reasonable control. The following
shall (without limitation), be regarded as cause beyond the Seller’s
9.9.1 act of God, explosion, flood, tempest, fire or accident;
9.9.2 war or threat of war, sabotage, insurrection, terrorism, civil
disturbance or requisition;
9.9.3 acts, restrictions, regulations, bye-laws, prohibitions or
measures of any kind on the part of any governmental, parliamentary
or local authority;
9.9.4 import or export regulations or embargoes;
9.9.5 strikes, lock-outs or other industrial actions or trade disputes
(whether involving employees of the Seller or of a third party);
9.9.6 difficulties in obtaining raw materials, labour, fuel, parts
9.9.7 power failure or breakdown in machinery.
10. SPECIFICATIONS AND INSTRUCTIONS
10.1 Unless the Seller agrees otherwise, only the specifications
referred to in the quotation shall form part of the Contract.
10.2 The Seller reserves the right subject to giving prior written
notice to the Buyer to modify the said specifications where the
Goods cannot in the opinion of the Seller be manufactured according
to the said specifications and the Buyer agrees to accept the Goods
as manufactured according to the specifications so modified in satisfaction
of the Sellers obligations as to manufacture of the Goods under
11. INTELLECTUAL PROPERTY
11.1 All specifications, drawings, designs and technical description,
and all Information and “know-how” whatsoever supplied
by the Seller to the Buyer is as between the Seller and the Buyer
the Seller’s copyright and property and shall at all times
be treated by the Buyer as confidential and shall not without the
prior written consent of the Seller be used by the Buyer except
for the purposes of the Contract.
11.2 The Buyer will indemnify the Seller against all actions claims
demands costs charges, penalties, royalties and expenses arising
directly or indirectly or incurred by reason of any infringement
or alleged infringement of or any right attributable to any letters
patent, registered design trade mark, trade name, copyright or proprietary
right arising from the use of any instructions, specifications or
designs whether express or implied supplied by the Buyer to the
12. INSOLVENCY OF BUYER
12.1 This Condition applies if: -
12.1.1 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);
12.1.2 an encumbrancer takes possession or a receiver is appointed,
of any of the property or assets of the Buyer; or
12.1.3 the Buyer ceases, or threatens to cease, to carry on business;
12.1.4 the Seller reasonably apprehends that any of the events mentioned
above is about to occur in relation to the Buyer and notifies the
12.2 If this Condition applies then, without prejudice to any other
right or remedy available to the Seller, the Seller shall be entitled
to cancel the contract and suspend any further deliveries under
the contract without any liability to the Buyer, and if the Goods
have been delivered but not paid for, all of the Seller’s
outstanding invoices to the Buyer become immediately due and payable
notwithstanding any previous agreement or arrangement to the contrary.
13.1 Any notice required or permitted to be given by either party
to the other under these Conditions shall be in writing addressed
to that other party at his registered office or principal place
of business or such other address as may at the relevant time have
been notified pursuant to this provision to the party giving the
13.2 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 shall remain
in full force and effect.
13.3 No waiver by the Seller 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.
13.4 A person who is not a party to the contract has no rights under
the Contracts (Rights of Third Parties) Act 1999 to enforce any
term of these Conditions but this does not affect any right or remedy
of a third party which exists or is available apart from that Act).
13.5 These Conditions constitute the entire contract between the
parties to the extent that the subject matter is dealt with herein
and may only be varied or modified in writing under the hands of
the parties or their authorised representatives.
13.6 The contract shall be governed by the laws of England, and
the Buyer agrees to submit to the non-exclusive jurisdiction of
the English courts.