In these conditions of sale (“Conditions”) the following words shall have unless the context requires otherwise the meanings set out opposite them.
1.1 “Barnsley Factory” shall mean Barrowfield Road, Platts Common Industrial Estate, Hoyland, Barnsley, S74 9TH;
1.2 “Birmingham Factory” shall mean Unit 1, The Hayes Trading Estate, Folkes Road, Stourbridge DY9 8RG;
1.3 “the” Company” shall mean either Newell and Wright Holdings Ltd (registered number 3228983) whose registered office is at Templeborough Depot, Sheffield Road, Sheffield, South Yorkshire S9 1RT or its subsidiaries including: Lakeland Tankers Limited (registered number 02971298) whose registered office is at Templeborough Depot, Sheffield Road, Sheffield, South Yorkshire S9 1RT; Vallely Tanker Engineering Limited (registered number 06222217) whose registered office is at Templeborough Depot, Sheffield Road, Sheffield, South Yorkshire S9 1RT ; and RTN (Road Tankers Northern) Limited (registered number 02589669) whose registered office is at Templeborough Depot, Sheffield Road, Sheffield, South Yorkshire S9 1RT as confirmed for each Contract in the acceptance of the Order;
1.4 “Company Premises” means the registered office of the Company, the Barnsley Factory or the Birmingham Factory;
1.5 “Contract” means the contract for the purchase and sale of the Goods or Works following acceptance by the Company of the Order in accordance with Condition 2.4;
1.6 “the” Customer” shall mean any person the firm company or organisation to whom the Company agrees to sell “the Goods” and/or for whom the Company agrees to perform “the Works”;
1.7 “the Goods” shall mean the goods (and any parts thereof) including vehicles tanks and trailers, the subject matter of the Contract as described in these Conditions and (if appropriate) on the face of the Company’s acknowledgement of order form;
1.8 “Managing Director” means the managing director of the Company;
1.9 “Order” means the Customer’s order for the Goods;
1.10 “Specification” means any specification for the Goods, including any related plans and drawings, that is agreed [in writing] by the Customer and the Company;
1.11 “VAT” shall mean value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax;
1.12 “Working Day” means a day other than a Saturday, Sunday or public holiday when banks in London are open for business; and
1.13 “the” Works” shall mean all works of design, manufacture, installation, repair, refurbishment, maintenance and servicing of the Goods (and any part thereof) the subject matter of the Contract as described in these Conditions and (if appropriate) on the face of the Company’s acknowledgement of order form.
2.1 All contracts for the sale of Goods or performance of the Works (or partly for the sale of the Goods and partly for the performance of the Works) by the Company are made subject to these Conditions of sale which supersede any earlier sets of conditions issued by the Company. Any stipulations or conditions in the Customer’s order form or other document delivered by the Customer which would if applicable conflict with these Conditions or in any way qualify or negate the same shall be deemed to be inapplicable to the Company unless the same shall have been expressly agreed to in writing in a document signed by a Managing Director. No other servant or agent of the Company has any authority to alter or qualify these Conditions in any way.
2.2 The Company reserves the right by notice in writing to the Customer signed by a Managing Director to add to amend or vary these Conditions at any time before acceptance of delivery of or payment for the Goods or commencement of or payment of the Works.
2.3 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.4 The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence, however acceptance of the delivery of the Goods or payment for the Goods by the Customer to the Company or allowing the company to commence the Works shall itself constitute an acceptance of these Conditions where acceptance has not previously been communicated to the Customer.
2.5 Quotations given by the Company shall not constitute an offer. A quotation shall only be available for a maximum period of 14 Working Days from the date thereof and may be withdrawn by the Company within such period at any time by written or oral notice.
2.6 An estimate is a considered approximation of the likely cost involved. All estimates are valid for 14 Working Days from the date thereof. If the Customer deposits goods belonging to it for the purpose of an estimate a storage charge will be made to the Customer from the fifteenth Working Day from the date of the estimate if it has not been accepted within 14 Working Days of the date of the estimate. Unless otherwise agreed in writing if the Works carried out under an estimate are to exceed by a significant amount the amount of the estimate the Company will not continue the Works without further express permission from the Customer which need not be in writing.
2.7 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 or acknowledgement of order then the Customer must set out that statement or representation in a document to be attached to or endorsed on the order and in any such case the Company may confirm reject or clarify the point and submit a new quotation or acknowledgement of order.
2.8 If subsequent to a Contract in which these Conditions are incorporated any further contract of sale is concluded with the Customer by letter or fax or email or orally or by a combination of these factors without express reference to these Conditions it shall be a term of such contract that these Conditions apply thereto.
3.1 Time for delivery is given as accurately as possible but is not guaranteed, and time for delivery shall not be of the essence.
3.2 Unless otherwise agreed delivery will be made ex- works the Company’s Premises and the price to be paid for the Goods is calculated on that basis. In the event that the Customer requests that the Goods are to be delivered elsewhere, the Company may charge the Customer for the cost of transportation of the Goods.
3.3 The Company will endeavour to deliver Goods to an agreed programme wherever possible. However, should the Company fail to meet the programme, no delay payments shall be applied unless expressly agreed by prior arrangement in writing, before commencement of the Contract.
3.4 Failure by the Customer to take delivery within ten Working Days of the Customer being notified that the Goods are ready for delivery or to make payment in respect of the Goods or any one or more instalments of the Goods shall entitle the Company to treat the whole of the Contract as repudiated by the Customer. The Company will be entitled to (without prejudice to any rights it may have to claim damages) the following:
3.4.1 to retain any deposit paid by the Customer and to recover from the Customer with any resulting loss, expense or damage incurred by the Company in respect of the supply or non-supply of the Goods including the cost of labour, overheads and a percentage in respect of profit;
3.4.2 to re-sell or otherwise dispose of part or all of the Goods without giving notice to the Customer of its intention to do so where the title has not passed to the Customer in accordance with Condition 4; and
3.4.3 to exercise its rights in respect of the Exchange Vehicles as defined and set out in Condition 11.1.
3.5 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a force majeure event or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.6 When the Customer is notified that the Goods are ready for delivery the Customer shall collect forthwith without delay. If the Goods are not collected or accepted by the Customer within three Working Days of being so notified by the Company the Company may despatch the Goods itself to the Customer’s Premises at the Customers expense or risk or store the Goods at the Customer’s expense and risk.
3.7 Without prejudice to Conditions 3.4 and 3.6 the Company will endeavour to comply with reasonable requests by the Customer for postponement of delivery of the Goods but shall be under no obligation to do so and where delivery is postponed by agreement otherwise than due to default by the Company the Customer shall pay all costs and expenses including a reasonable charge for storage, insurance and transportation occasioned thereby and payment for the Goods shall be made on the date payment would have been due had delivery not been postponed. Subject to Condition 4.1.2 all goods are stored at the risk of the Customer.
4. PASSING OF PROPERTY AND RISK
4.1 Risk shall pass to the Customer so that the Customer is responsible for all loss damage or deterioration to the Goods:
4.1.1 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 arrive at the place of delivery; or
4.1.2 in all other circumstances at the time when the Goods leave the Company’s Premises or, in the event that the Customer has failed to collect the Goods, after the expiration of 3 Working Days after the Customer has been notified that the Goods are available for collection.
4.2 Title to the Goods or any part thereof shall not pass to the Customer until: –
4.2.1 the Customer has paid to the Company all sums due and payable by it to the Company under this Contract and all other prior contracts between the Company and the Customer; or
4.2.2 the Company serves notice in writing on the Customer specifying that title in the Goods or any specified part thereof has passed to the Customer;
4.3 Until title to the Goods has passed to the Customer the Customer shall possess the Goods and any part thereof as a bailee of the Company and in particular shall:
4.3.1 store the Goods and any part thereof separately from other goods so as the ensure that they are clearly identifiable as the property of the Company,
4.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and;
4.3.3 keep the Goods and any part thereof insured in the amount of the price at which the Goods are sold to the Customer against all insurable risks and shall account to the Company for any monies relating to the Goods and any part thereof received under such policy of insurance forthwith upon receipt of the same and pending such account shall hold such monies on trust for the Company and pay them into a separate bank account designated as a trust account for the Company. Any account of monies by the Customer in accordance with the terms of this Condition received by the Company shall not discharge the Customer’s liability to pay the price for the Goods plus any interest accrued in accordance with Condition 7.3 below but shall be set off against such liability.
4.4 The Company shall be entitled to recover and resell Goods in respect of which title has not passed to the Customer at any time and the Customer hereby licences the Company its officers employees and agents to enter upon any premises of the Customer for the purpose either of satisfying itself that Condition 4.3.1 is being complied with by the Customer or recovering any Goods in respect of which title has not passed to the Customer.
4.5 The Customer shall only be at liberty to sell the Goods prior to the passing of title to the Customer on the understanding that that portion of the proceeds of sale of the Goods which represents the sums due to the Company belong to the Company and are held by the Customer on trust for the Company and are paid into a separate bank account designated as a trust account for the Company.
5. REPLACED PARTS
All parts replaced during any Works performed except those, which have to be returned to the manufacturer or supplier under warranty or service exchange agreement will be retained by the Company for the Customer until the Goods are collected. If the Customer does not specifically ask to take possession of such replaced parts upon collecting the Goods they will become the property of the Company to dispose of as it deems fit.
6.1 The price for the Goods or Works shall be the price set out on the Order, or if no price is quoted, the price set out in the Company’s published price list in force as at the date of delivery
6.2 All prices are unless otherwise stated quoted exclusive of VAT or other tax or duty relating to the performance of the Works or the sale or delivery of the Goods chargeable to the Company, and where the Company has agreed to deliver the Goods the price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods as necessary, which shall be invoiced to the Customer.
6.3 If after the date of the Company’s quotation the cost to the Company of the materials used by the Company in the performance of the Works or the manufacture of the Goods increases then the Company may give notice of any such increase which the Company is proposing to pass on the Customer and such notice if given shall have the effect of increasing the Company’s quoted price for the Goods. The Customer may by notice in writing to the Company within 7 Working Days of the notice of such increase cancel the order and in this event the Contract for the sale of the Goods or the performance of the Works shall be determined without any liability whatsoever being incurred by the Company or the Customer to the other. If the Customer shall not give written notice rejecting the increase within 7 Working Days then the increase shall be added to the quoted price and form part of the Contract between the Company and the Customer.
7. TERMS OF PAYMENT
7.1 Unless otherwise agreed by the Company in writing payment for the Goods and/or the Works shall be paid in full and received by the Company on or before delivery of the Goods or on or before completion of the Works. Any default by the Customer in making payment on the due date shall entitle the Company (without prejudice to its other rights) to suspend delivery of the Goods to and/or performance of the Works for the Customer.
7.2 Where the Goods and/or the Works are delivered and/or performed by instalments the Company may invoice each instalment separately and the Customer shall pay such invoices in accordance with the Conditions.
7.3 In the event of default in payment by the Customer the Company shall be entitled without prejudice to any other right or remedy the Company has under these Conditions and without prior notice to suspend all further deliveries and/or the performance on any Contract or Contracts between the Company and the Customer and to charge interest on the amount outstanding at the rate of 4% above the Bank of England base lending rate accruing on a daily basis from the date of the invoice until payment. A cheque tendered by the Customer in payment shall not be treated as payment until the same has been cleared.
7.4 The Customer shall not be entitled to withhold payment of any amount payable under the Contract to the Company in relation to any disputed claim of the Customer in respect of faulty goods or any other alleged breach of the Contract, nor shall the Customer 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.
In respect of all amounts outstanding and due to the Company and without prejudice to any other remedies the Company may have the Company shall have a general lien on all Goods and property of the Customer in the possession of the Company (whether worked on or not) and shall be entitled on the expiration of 14 Working Days’ notice to the Customer of its intention to so do to dispose of or deal with such goods and property in such manner and at such price as the Company in its sole discretion thinks fit to apply any proceeds towards such outstanding amounts.
9.1 Cancellation of a Contract will only be agreed to by the Company on condition that any deposit paid under a Contract will be forfeited and all costs and expenses incurred by the Company up to the time of cancellation and all loss of profits and other loss or damage resulting to the Company by reason of such cancellation will be paid forthwith by the Customer to the Company (without prejudice to any other rights the Company has to claim damages).
10.1 Where the Goods are supplied by the Company to the Customer in accordance with any specifications supplied by the Customer no terms and conditions are made or to be implied nor is any warranty given or to be implied as to the life or wear of the Goods supplied or that they be suitable for any particular purpose or for use under any specific conditions, notwithstanding that such purpose or conditions may be known or made known to the Company (this being without prejudice to Condition 14).
10.2 The Customer warrants that the Goods manufactured to its specification do not infringe any patent, registered design or other like protection or the provision of any statute, statutory instrument or regulations for the time being in force and the Customer will indemnify the Company from and against all action claims costs and proceedings which arise due to the manufacture of the Goods to the drawings or specifications of the Customer where such drawings or specifications are at fault or where it is alleged that they involve an infringement of patent copyright, registered design, design copyright or other exclusive intellectual property right.
10.3 The Customer shall be solely responsible for ensuring that all drawings information advice and recommendation given to the Company either directly or indirectly by the Customer or by the Customer’s agent servant’s consultant or advisers are accurate correct and suitable. Examination or consideration by the Company of such drawings information advice or recommendations shall in no way limit the Customer’s responsibility under a Contract unless the Company specifically agrees in writing to accept responsibility.
10.4 The Company reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
11. SHORTAGES AND DEFECTS
The Company shall not be liable for: –
11.1 any shortages or defects in the quality or state of the Works and/or the Goods which would be apparent on visual inspection unless the Customer shall have inspected the Goods within 3 Working Days of delivery of the Goods and shall have given within 14 Working Days of such delivery of the Goods a written notice to the Company specifying the matters complained of and shall have afforded the Company a reasonable opportunity of inspecting the Goods before they have been used processed or sold;
11.2 any shortages or defects in the quality or state of the Goods not apparent on visual inspection unless the Customer shall have given written notice to the Company specifying the matters complained of as soon as reasonably practicable after discovery of such matters and in any event no later than twelve months after the date of arrival of the Goods at Customer’s premises where the Goods are delivered to such premises or not later than twelve months after the date of collection where the Goods are collected and shall have immediately after discovery of such matter ceased to make any use of the Goods and shall afforded the Company a reasonable opportunity to inspect the Goods;
11.3 loss or damage suffered by reason of use of the Goods after the Customer becomes aware of a defect or after the Customer becomes aware of circumstances, which should reasonably have indicated the existence of a defect.
12.1 The Company warrants that on delivery Goods manufactured by the Company shall:
12.1.1 conform in all material respects with their description and any applicable specification; and
12.1.2 be free from material defects in material and workmanship.
12.2 Subject to Condition 12.4, if:
12.2.1 the Customer gives notice in writing to the Company within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Condition 13.1;
12.2.2 the Company is given a reasonable opportunity of examining such Goods; and
12.2.3 the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Customer’s cost,
the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
12.3 In the event that the Goods are not manufactured by the Company then: –
12.3.1 the Company will use its reasonable endeavours to assign to the Customer the benefit of any warranty or guarantee given by the manufacturer of the Goods (or any parts thereof);
12.3.2 any recommendation by the Company of such Goods shall not in any way make the Company liable in respect of such Goods;
12.3.3 the Company gives no assurance warranty or guarantee whatsoever that the sale or use of the Goods will not infringe patent, copy right, registered design, design copyright or other intellectual property rights of any other person firm or company.
12.4 The Company shall not be liable for any failure of the Goods to comply with the warranty set out in Condition 12.1 in any of the following events:
12.4.1 the Customer makes any further use of such Goods after giving notice in accordance with Condition 12.2;
12.4.2 the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
12.4.3 the defect arises as a result of the Company following any drawing, design or Specification supplied by the Customer;
12.4.4 the Customer alters or repairs such Goods without the written consent of the Company;
12.4.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
12.4.6 the Goods differ from their description or the specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements
12.5 When a Customer returns any Goods under this Condition 12, the Customer shall ensure that:
12.5.1 Goods originally manufactured at the Barnsley Factory shall be delivered at the Customer’s cost to the Barnsley Factory.
13.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
13.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
13.1.2 fraud or fraudulent misrepresentation;
13.1.3 breach of the terms implied by section 11 of the Sale of Goods Act 1979;
13.1.4 defective products under the Consumer Protection Act 1987; or
13.1.5 any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
13.2 Subject to Condition 13.1,
13.2.1 Except as provided in this Condition 13, the Company shall have no liability to the Customer in respect of the failure of Goods to comply with the warranty set out in Condition 13.1 and THE COMPANY SHALL NOT BE LIABLE to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for loss including loss of profit, injury or damage of any kind whatsoever consequential or otherwise (including without limitation removal or rectification work required in connection with the installation of repaired or substitute Goods) which results directly or indirectly from any delay or the Company’s performance of or failure to perform the Works or supply or failure to supply Goods to the Customer or any combination of these; and
13.2.2 the Company’s total liability to the Customer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including the performance of its obligations under Condition 13.1 shall not exceed the price of the Goods the subject of that Contract.
13.2.3 The Company will not reimburse any third party costs in relation to any potential warranty claims without written authorisation from the Company and in the unlikely event of the failure of the Goods the Company will not accept or be liable for any costs incurred by a Customer for the replacement hire or use of a substitute vehicle without written or email authorisation from the Company
14. CONFIDENTIAL INFORMATION
All drawings documents confidential records computer software and other information supplied by the Company are supplied on the express understanding that copyright is reserved to the Company and that the Customer will not without the written consent of the Company either give away loan exhibit or sell any such drawings documents records software or other information or extracts there from or copies thereof or use then in any way except in connection with the Goods in respect of which they are supplied.
15. DATA AND TECHNICAL INFORMATION
15.1 The information contained in the advertising, sales, and technical literature issued by the Company or the manufacturer of any of the Goods supplied by the Company may be relied upon to be accurate in the exact circumstances in which it is expressed otherwise any illustrations performance details examples of installations and methods of assembly and all other technical data in such literature are based on experience and upon trials under test conditions and are provided for general guidance only. No such information shall form part of the Contract unless the Customer shall have complied with Condition 2.7 relating to statements and representations.
15.2 In the event of an alteration of the design, specification construction and/or equipment of the Goods by a manufacturer other than the Company, the Company reserves the right without previous notice to supply the Goods ordered with or without such alteration.
16. QUANTUM MERUIT
Where from any cause whether arising under the Contract or otherwise and whether due to the Company’s breach of contract or otherwise the Works are only partly completed then the Company shall be entitled to payment on a quantum meruit basis in respect of all work done by them without prejudice to the Company’s other rights and remedies should non-completion be occasioned by default of the Customer
17. HEALTH AND SAFETY
Instructions for use, cautionary notes, and other technical notices are supplied to the Customer with the Goods, and the Customer shall observe, respect, and comply with the same.
18.1 If the Customer becomes subject to any of the following events,
18.1.1 bankrupt or unable to pay its debts as prescribed by section 123 Insolvency Act 1986; or
18.1.2 compounds with its creditors or in the event of a resolution being passed or proceedings commenced for the administration or liquidation of the Customer (other than for a voluntary winding up for the purpose of reconstruction or amalgamation); or
18.1.3 a Receiver, Managing Director, Administrator, or Administrative Receiver is appointed of all or any part of its assets or undertaking; or
18.1.4 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business,
the Company shall, without limiting any other right or remedy available to it, be entitled to cancel the Contract in whole or in part by notice in writing without prejudice to any right or remedy accrued or accruing to the Company, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
18.2 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
19. FORCE MAJEURE
In the event that the manufacture of or delivery of any of the Goods or performance of the Works is prevented or hindered directly or indirectly by fire, the elements, war, civil commotion, strikes or lock-outs, industrial dispute, shortage of raw materials or fuel notwithstanding that the Company has taken all reasonable steps to procure the same, shortage of labour, breakdown or partial failure of plant and machinery, late receipt of the Customer’s specification or other necessary information acts, orders or regulations, of Government, delay on the part of any independent sub-contractor or supplier, or any other cause whatsoever beyond the reasonable control of the Company then the time for delivery of the Goods or performance of the Works shall be extended for a reasonable period having regard to the effect of the delaying cause on the manufacture delivery or performance, and neither party shall be liable for any failure in performing its obligations.
Any notice required to be given by either the Company or the Customer to the other shall be deemed to be properly served if sent by prepaid registered letter posted to its registered office or such other address as may from time to time be notified to the other for this purpose and any notice served shall be deemed to have been served 24 hours after the time of posting and in proving such service it shall be sufficient to prove that the notice was properly addressed and posted.
21. THIRD PARTY RIGHTS
A person who is not a party to the Contract shall not have any rights under or in connection with it.
22. ENGLISH LAW
All Contracts shall be governed and interpreted according to English law and the Company and the Customer irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.