Issued: June 2018 F-DSL-001
GENERAL TERMS AND CONDITIONS OF SALE DEFINITIONS
1. In these conditions “the Company” means Viva Nylons Limited and/or its subsidiary or associated companies for the time being. The Customer means the person, firm or company which contracts with the Company for the purchase of the Goods and/or the provision of the Services. The Goods” means the goods (including any instalment of the goods or parts thereof and any replacement parts to be supplied by the Company in connection with the provision of the Services) which the Company is to supply in accordance with these conditions. The Services” means the repair, modification, maintenance, installation or other services to be provided by the Company in accordance with these conditions. The Serviced Goods” means any goods in respect of which the Services are to be or, as appropriate, have been provided by the Company. The Contract” means the contract for the sale of the Goods and/or the provision of the Services by the Company to the Customer and shall incorporate these conditions, the Company’s quotation (if any) and any and every appendix and/or authenticated addendum thereto including any specifications and/or drawings referred to in such quotation.
FORMATION OF CONTRACT
2.1 All goods and services are offered and all contracts are entered into subject to these conditions. All other terms, conditions or warranties whatsoever are excluded from the Contract or any variation thereof unless expressly accepted by the Company in writing. No servant or agent of the Company has power to vary these conditions orally or to make any statement or representation about the goods or services offered, their fitness for any purpose or any other matter whatsoever. If any statement or representation has been made to the Customer by the Company its servants or agents upon which the Customer relies other than in the documents enclosed with the Company’s quotation then the Customer must set out that statement or representation in a document to be attached to or endorsed on the Customers order and in any such case the Company may confirm, reject or clarify the point and submit a new quotation.
2.2 These conditions shall be incorporated into any contract between the Company and the Customer to the exclusion of any terms or conditions stipulated or referred to by the Customer. Any dealings with the Company following receipt by the Customer of notice of these conditions shall automatically be deemed acceptance thereof notwithstanding the absence of formal acknowledgment.
2.3 Unless otherwise expressly stated in writing, all quotations and estimates supplied by the Company are invitations to treat. The Customer’s order is an offer and shall become binding upon acceptance by the Company.
QUOTATIONS AND TENDERS
3.1 No quotation or tender issued by the Company shall be valid unless it is signed by a duly authorised representative of the Company. Quotations and tenders shall only be valid for the period specified therein or if no such period is specified for a maximum period of 30 days from the date thereof and may be withdrawn or cancelled by the Company at any time within any such period by written or oral notice.
3.2 Quotations and tenders are for the whole of the goods and/or services for which quotations or tenders are given by the Company and the Company reserves the right to refuse acceptance of any order which constitutes only part of the goods and/or services forming the subject of the quotation or tender.
3.3 An order once accepted cannot be cancelled or varied except with the written consent of the Company; any such consent of the Company shall be on terms which would fully indemnify the Company against all costs, charges and expenses incurred by the company in connection with such order and/or its cancellation or variation.
PERFORMANCE AND DELIVERY
4.1 Delivery of the Goods and/or Serviced Goods shall be made by the Customer collecting them at the Company’s premises at any time after the Company has notified the Customer that they are ready for collection or, if some other place for delivery is agreed by the Company, by the Company delivering the same to that place.
4.2 All times quoted for performance or delivery are given in good faith but are not guaranteed. Time for delivery or performance shall not be of the essence. The Customer shall have no right to damages or to cancel the order for failure by the Company for any cause to meet any performance or delivery time stated.
4.3 All times quoted for performance or delivery are from the date of receipt by the Company of a written order to proceed and shall in every case be dependent upon prompt receipt of all necessary information, drawings, final instructions and approvals from the Customer. Alterations by the Customer in its requirements may result in delay in delivery or performance.
4.4 The Company will deliver as near as possible to the place of delivery agreed in writing by the Company as exists a safe and adequate access thereto. The Customer is responsible in all cases for providing suitable facilities for unloading and for unloading the delivery vehicle and shall be responsible for all loss of or damage to the Goods or the Serviced Goods during the course of such unloading.
4.5 Where the Customer collects or arranges collection of the Goods or the Serviced Goods from the Company’s premises, entry of any vehicle of the Customer or its agent on to the Company’s premises shall be at the sole risk of the Customer or its agent save to the extent that any claim arises from the Company’s negligence resulting in personal injury or death.
4.6 The Company will endeavour to comply with reasonable requests by the Customer for postponement of delivery or performance but shall be under no obligation to do so. Where delivery or performance is postponed otherwise than due to default by the Company or if the Customer fails to take delivery on the agreed delivery date or, if no specific delivery date has been agreed, when the Goods and/or Serviced Goods are ready for despatch, the Customer shall pay all costs and expenses including a reasonable charge for storage,, insurance and transportation costs occasioned thereby and payment for the Goods and/or the Services shall be made in accordance with these conditions.
4.7 Any packaging supplied by the Company unless otherwise expressly agreed is intended to provide adequate protection throughout normal conditions of transit of usual duration.
4.8 The Company may postpone or cancel any delivery or performance either in whole or in part where any amounts then owing by the Customer to the Company have not been duly paid, but without prejudice to any other rights or remedies which the Company may have against the Customer.
4.9 Failure by the Customer to take delivery of or to make payment in respect of any one or more instalments of Goods delivered hereunder shall entitle the Company to treat the whole Contract as repudiated by the Customer.
4.10 The Company may at any time withhold delivery of the Goods or the Serviced Goods pending payment of any sum due from the Customer to the Company either under this Contract or any other contract between the Company and the Customer.
4.11 The Company reserves the right at any time by notice in writing to the Customer to cancel the Contract for the supply of the Goods or the provision of the Services the subject of any quotation in the event of the Customer failing to approve forthwith any plans specifications or other matter submitted to the Customer for such approval, but without prejudice to any other rights or remedies which the Company may have against the Customer.
RISK AND TITLE IN GOODS
5.1 Risk shall pass to the Customer so that the Customer is responsible for all loss, damage or deterioration to the Goods supplied by the Company.
5.1.1 If the Company delivers the Goods by its own transport or in accordance with a specific contractual obligation arranges transport for the Goods at the time when the Goods or a relevant part thereof arrive at the place of delivery; or
5.1.2 In all other circumstances at the time when the Goods or a consignment or other part thereof leave the premises of the Company.
5.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these conditions, title to the Goods or any relevant part thereof shall only pass to the Customer upon the happening of any one of the following events:
5.2.1 The Customer has paid to the Company all sums due and payable by it to the Company for all goods whatsoever supplied under this Contract; or
5.2.2 When the Company serves on the Customer notice in writing specifying that title in the Goods or such part thereof has passed.
5.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Company’s bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Company’s property and the Customer hereby irrevocably authorizes the Company to enter upon the premises of the Customer or of any third party where the goods are stored for the purpose of ensuring that the provisions of this clause are being complied with.
5.4 Until such time as the property in the Goods passes to the Customer, the Customer shall be entitled to resell or use the Goods in the ordinary course of its business but such right may be terminated immediately upon notice by the Company to the Customer and if the Customer is then in possession of the Goods or any part thereof the Customer shall forthwith return the same to the Company free of charge and in any event shall cease to be in possession of the same with the consent of the Company.
5.5 The Company may recover Goods In respect of which title has not passed to the Customer at any time and the Customer herby irrevocably authorises the Company to enter upon any premises of the Customer or of any third party where the Goods are stored with or without vehicles for the purpose of repossessing any Goods in respect of which title has not passed onto the Customer.
5.6 The Customer shall not be entitled to pledge or in any way of security for any indebtedness any of the goods which remain the property of the Company, but if the Customer does so all monies owing by the Customer to the Company (without prejudice to any other right or remedy of the Company) forthwith become due and payable,’
6.1 All prices are unless otherwise stated-quoted net ex works exclusive of VAT and are subject to fluctuation at the Company’s exclusive discretion in the event of any increase in the cost of labour, materials, overheads, transport, taxes, duties or any other costs whatsoever affecting the manufacture or delivery of the Goods or the performance of the Services and any fluctuations in exchange rates affecting the cost of imported goods or prices quoted other than in sterling. Any increase in such costs during the period of the Contract will be added to the quoted price.
6.2 In the event of any alteration or modification being requested by the Customer and agreed by the Company in design, quantity, specification or other requirements the Company shall be entitled to make an adjustment of the Contract price corresponding to such alteration.
6.3 The Company shall further be entitled to make an adjustment to the Contract price in the event that:
6.3.1 In the opinion of the Company an order is not accompanied by sufficient information or drawings to enable work to commence forthwith;
6.3.2 The information accompanying the order does not provide a full and accurate indication of the work involved; or
6.3.3 Delay is caused by the Customer’s instructions or lack of instructions.
6.4 The cost of delivery, carriage and packaging shall unless otherwise stated be charged extra and is not refundable.
6.5 Where a quoted price includes the whole or part of the cost of any tooling the Customer acknowledges that unencumbered and exclusive title in such tooling shall have vested in the Company and that the Customer has no claim to or rights therein.
TERMS OF PAYMENT
7.1 Unless otherwise agreed by the Company in writing the Customer shall pay the price for the Goods and/or Services within 30 days of the date of the Company’s invoice notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer. The time for payment of the price shall be of the essence of the Contract.
7.2 The Company shall be entitled to submit its invoice on or at any time after the despatch of the Goods or Serviced Goods from the Company’s premises or the substantial performance of the Services save that where delivery or performance has been postponed at the request or by the default of the Customer then the Company may submit its invoice for the Goods at any time after the Goods are ready for delivery or would have been ready in the ordinary course but for the request or default as aforesaid and may forthwith upon any such postponement invoice the Customer for all Services performed up to that date without prejudice to any other right or remedy of the Company.
7.3 All payments shall be made to the Company in sterling (unless another currency has been otherwise agreed) at the address shown on the Company’s invoice or in such other currency and/or at such other place as the Company may from time to time direct. Where payment is tendered by cheque or other negotiable instrument the Company shall not have been paid the amount tendered until the cheque or other instrument has been honoured in full and the amount credited to the Company’s bank account.
7.4 Where Goods are delivered by instalments the Company may invoice each instalment separately and the Customer shall pay such invoices in accordance with these conditions.
7.5 Notwithstanding the other provisions of these conditions the Company shall be entitled at its sole option to require payment in whole or in part prior to the performance of the Contract and/or to require payment by instalments during the performance of the Contract.
7.6 The Customer shall pay all amounts owing to the Company in full and shall not exercise any rights of set off or counterclaim against invoices submitted.
7.7 Without prejudice to any other rights or remedies of the Company, any default by the Customer in the payment of any sums due and payable by it to the Company under this Contract or any other contract between the Company and the Customer shall entitle the Company to suspend without notice deliveries of goods and the performance of services under this or any other contract with the Customer for so long as the default continues and to treat this Contract as repudiated by the Customer if the Customer shall not within 7 days of receiving written notice from the Company have paid off sums due to the Company under this or any other contract with the Customer.
7.8 In the event of default in payment by the Customer the Company shall be entitled without prejudice to any other right or remedy to charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 4% per annum above the base rate of Barclays Bank Plc from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
7.9 The Company shall have a special lien on all Serviced Goods in the Company’s possession for all charges arising under this Contract in respect of such Serviced Goods and shall further have a general lien on all goods and property of the Customer in the Company’s possession for all monies due and payable by the Customer to the Company under this Contract and all other contracts between the Company and the Customer. If either lien is not satisfied and discharged within a reasonable time, the Company may in its absolute discretion sell the goods and properties concerned and apply the proceeds towards the discharge of the relevant lien and the expenses of the sale.
SHORT DELIVERY AND DEFECTS APPARENT ON INSPECTION
8.1 The Customer shall have no claim for shortages, defects or other damage apparent on visual inspection unless:
8.1.1 The Customer inspects the Goods within 7 working days of arrival at its premises or other agreed destination and notifies the Company of the claim orally within such period; and
8.1.2 A written complaint is made to the Company and to the carrier within 7 days of receipt of the Goods or such shorter period as the carriers conditions (if applicable) require specifying the shortage, defect or damage; and
8.1.3 The Company is given an opportunity to inspect the Goods and investigate any complaint before any use of or alteration to or interference with the Goods.
8.2 If the provisions of clause 8.1 are not complied with then the Goods shall be deemed to be in all respects in accordance with the Contract and the Customer shall be bound to pay for the same accordingly. If short delivery does take place, the Customer undertakes not to reject the Goods but to accept Goods delivered as a part performance of the Contract.
8.3 The Customer shall have no claim for non-delivery unless a written complaint is made to the Company and to the carrier within 14 days of the date of the Company’s invoice or advice note or such shorter period as the carrier’s conditions (if applicable) require.
8.4 Subject to compliance by the Customer with the terms of these conditions, which shall be a condition precedent to the Company’s liability, the Company shall at its option be entitled to repair or replace free of cost and within a reasonable time any Goods lost in transit or found to be defective or damaged on visual inspection. If the Company does so repair or replace the Goods the Customer shall be bound to accept such repaired or replacement Goods and the Company shall be under no further liability in respect of any loss or damage whatsoever arising from the initial delivery or lack of delivery or from any delay before the defective Goods are repaired or the replacement Goods are delivered.
8.5 Before the Customer becomes entitled to reject the Goods or the Services the Company shall be given reasonable time and opportunity in order to rectify its performance. If the Company does so rectify its performance the Goods or the Services shall be deemed to be in all respects in accordance with the Contract and the Customer shall be bound to pay for the same accordingly. If the Customer does become entitled to reject the Goods or the Services the Company shall repay to the Customer any sums paid by the Customer in respect thereof but shall be under no further liability in respect of its failure to perform or the consequences thereof. The Customer shall in any event have no right to reject the Goods or the Services or any part of them on account of minor omissions or defects which do not materially affect the commercial use of the Goods or the Serviced Goods.