Terms & Conditions of Sale
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In these Terms and Conditions, the following words have the following meanings:
‘Buyer’ the person(s) or company whose order for goods is accepted by the Seller;
‘Contract’ any contract between the Seller and the Buyer for the sale and purchase of the Goods;
‘Goods’ any goods which the Seller is to supply to the Buyer (including any of them or any part of them);
‘Seller’ CuBrAlco Limited with registered company number 03055926 whose registered office is at Drayton Court, Drayton Road, Shirley, Solihull, West Midlands, B90 4NG. United Kingdom.
2. APPLICATION OF CONDITIONS
2.1 No binding Contract shall be deemed to have been effected until confirmed in writing by the Seller.
2.2 Contracts are accepted upon and subject to the Terms and Conditions printed herein to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order or similar document). Unless expressly accepted in writing any qualifications of these Terms and Conditions contained in any written or printed document of the Buyer shall be deemed to be inapplicable.
2.3 Each order for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to purchase Goods subject to these Terms and Conditions. Any variation or addition to any Contract and any representations about the Goods shall only be binding on the Seller if accepted in writing and signed by a Director of the Seller.
2.4 Acceptance of delivery of the Goods shall be deemed to be conclusive evidence of the Buyer’s acceptance of these Terms and Conditions.
2.5 The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.6 Any quotation is given on the basis that no Contract will come into existence until the Seller despatches an acknowledgement of order to the Buyer. Quotations by the Seller shall be open for acceptance by the Buyer within 7 days from the date of the quotation provided the Seller has not previously withdrawn it.
2.7 Subject to condition 4.8 no order which the Seller has accepted may be cancelled by the Buyer except with the written agreement of the Seller and on terms that the Buyer shall indemnify the Seller in full against all losses (including loss of profit), costs, damages, charges and expenses suffered or incurred by the Seller as a result of such cancellation.
3. DESCRIPTION AND SPECIFICATION
3.1 The description of the Goods shall be as set out in the Seller’s quotation.
3.2 All drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the Contract.
3.3 The Seller may make any changes to the specification, design, materials or finishes of the Goods which are required to conform with any applicable safety or other statutory requirements.
4.1 Delivery of the goods shall be made ex-works (Incoterms 2000) unless otherwise agreed between the parties.
4.2 The Buyer will take delivery of the Goods within 7 days of the Seller giving it notice that the Goods are ready for delivery.
4.3 If carriage is required in accordance with condition 4.1 the Goods shall be delivered by such means as the Seller thinks fit unless the Buyer has specified in its order the details of the contract with a carrier which it reasonably requires having regard to the nature of the Goods and the other circumstances of the case.
4.4 The carrier shall be deemed to be the Buyer’s agent except for the purposes of sections 44, 45 and 46 of the Sale of Goods Act 1979.
4.5 Delivery of the Goods shall be accepted at any time of day.
4.6 Any dates specified by the Seller for delivery of the Goods are approximate only and may not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
4.7 The Seller will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Seller’s negligence) nor unless such delay exceeds 180 days will any delay entitle the Buyer to terminate or rescind the Contract.
4.8 If the Buyer fails to take delivery of any of the Goods when they are ready for delivery or to provide any instructions, documents, licences or authorisations required to enable the goods to be delivered on time (except because of the Seller’s fault), risk in the Goods will pass to the Buyer (including, without limitation, for loss or damage caused by the Seller’s negligence, the Goods will be deemed to have been delivered and (without prejudice to its rights) the Seller shall be entitled: -
4.8.1 to store the goods at its premises or elsewhere until actual delivery or sale and to charge the Buyer for all related costs and expenses; and/or
4.8.2 following written notice to the Buyer to sell any of the Goods at the best price reasonably obtainable in the circumstances and to charge the Buyer for any shortfall below the price under the Contract.
4.9 The Buyer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for off-loading the Goods.
4.10 The Buyer will indemnify the Seller against any liability and expense (whether arising under statute or common law) caused by the Buyer’s failure to provide appropriate equipment and manual labour for off-loading (whether or not the off-loading is supervised by or on behalf of the Buyer) for;
4.10.1 any personal injury to or death of any of the Seller’s employees, agents or sub-contractors or any third party; and
4.10.2 any damage to or loss of any property of the Seller, its employees, agents or sub-contractors or any third party
4.11 The Seller may deliver to the Buyer Goods up to 5% more or 5% less than the quantity ordered without any adjustment in the price and the quantity delivered shall be deemed to be the quantity ordered.
4.12 The Seller may make delivery by installments.
4.13 Each separate installment shall be invoiced and paid for in accordance with this Contract.
4.14 Failure by the Seller to deliver any one or more (but not all) installments in accordance with this Contract or any claim by the Buyer in respect of any one or more (but not all) installments shall not entitle the Buyer to treat this Contract as repudiated.
4.15 Failure by the Buyer to pay for any one or more installments in accordance with this Contract shall entitle the Seller (without prejudice to its other rights and remedies): -
4.15.1 to suspend without notice further deliveries of Goods or goods under any other contract between the Seller and the Buyer pending payment by the Buyer; and/or
4.15.2 to treat this Contract as repudiated by the Buyer.
5. CLAIMS FOR SHORTAGE NON-DELIVERY AND DAMAGE ON DELIVERY
5.1 The quantity of any consignment of Goods as recorded by the Seller upon despatch from the Seller’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 Where goods are accepted from the carrier without checking, the delivery sheet of the carrier must be signed, ‘not examined’ otherwise no claim whatsoever will be accepted.
5.3 Without prejudice to clause 5.2 no claim for damages or shortages will be accepted unless notice is given in writing, both to the carrier and Seller within 3 days of delivery. In the absence of such notice the Buyer will be deemed to have accepted the Goods.
5.4 No claim for non-delivery will be considered (even if caused by the Seller’s negligence) unless the Seller is advised in writing within 14 days of the date of the Seller’s invoice.
5.5 If the goods are confirmed checked on acceptance from the carrier the number of cases/packages/pallets should be verified. In addition the condition of said cases/packages/pallets should be carefully checked to ensure that Goods are completely intact and that no tampering or interference has taken place during transit. Any evidence of tampering or interference must be noted when the goods are signed for and the Seller and carrier notified in accordance with clause 5.3.
5.6 Any liability of the Seller for the Goods for damage shortages, or non-delivery in this clause 5 shall be limited to replacing the Goods within a reasonable time or at the Seller’s discretion issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
5.7 A signature of qualified acceptance on a carrier’s delivery note shall not be written notice to the Seller for the purpose of these terms and conditions.
6.1 Where the Goods are exported to the Buyer the Goods will be sold FOB (or CIF at the option of the Seller) [Incoterms 2000]. Where goods are sold FOB the Seller shall be under no obligation to give the Buyer the notice specified in section 32(3) of the Sale of Goods Act 1979.
7.1 The Seller warrants that (subject to the other provisions of these Terms and Conditions) upon delivery and for a period of 12 months from the date of delivery the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1994 unless agreed to the contrary by the Seller in writing. All other warranties or conditions as to quality or description are excluded.
7.2 The Seller shall not be liable for a breach of the warranty in condition 7.1 if:
7.2.1 the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
7.2.2 the Buyer alters or repairs such Goods without the written consent of the Seller.
7.3 If the Buyer makes a valid claim against the Seller based on a defect in the quality of the Goods under this condition 7, the Seller shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate.
7.4 If the Seller complies with condition 7.3 it shall have no further liability for a breach of the warranty in condition 7.1 in respect of the quality of such Goods.
7.5 The Buyer is responsible unless otherwise agreed in writing for satisfying himself/itself before use of the suitability of the goods for his/its own particular purpose.
7.6 The Seller at the request of the Buyer may furnish technical advice with reference to the use of the goods sold hereunder but on the express understanding that such advice is given and accepted at the Buyer’s risk and the Seller shall not be liable for any loss, damage or claims arising therefrom.
8. LIMITATION OF LIABILITY
8.1 The following provisions and the provisions of conditions 7 and 5.3 set out the entire liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
8.1.1 any breach of these Terms and Conditions; and
8.1.2 Any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
8.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are excluded from the Contract.
8.3 Nothing in these Terms and Conditions excludes or limits the liability of the Seller for death or personal injury caused by the Seller’s negligence or fraudulent misrepresentation.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITIONS 8.4 AND 8.5
8.4 Subject to conditions 8.2 and 8.3:
8.4.1 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the contract price; and
8.4.2 the Seller shall not be liable to the Buyer by reason of any representation or any implied warranty, condition or other term or any duty at law or under the express terms of this Contract for any loss of profit, loss of business, depletion of goodwill, or any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (whether or not caused by the negligence of the Seller, its employees, agents or sub-contractors) which arise out of or in connection with the Contract.
8.5 The Buyer will indemnify the Seller against all damages, penalties, costs and expenses to which the Seller may become liable as a result of work done in accordance with the Buyer’s specification which involves the infringement of any letters patent, registered design or copyright.
9. FORCE MAJEURE
9.1 The Seller shall not be liable to the Buyer in any manner or be deemed to be in breach of this Contract (subject to condition 8) because of any delay in performing or any failure to perform any of the Seller’s obligations under this Contract if the delay or failure was due to any cause beyond the Seller’s reasonable control.
9.2 Without prejudice to the generality of condition 9.1 the following shall be included as causes beyond the Seller’s reasonable control:
9.2.1 governmental actions, war or threat of war, national emergency, riot, civil disturbance, sabotage or requisition;
9.2.2 Act of God, fire, explosion, flood, epidemic or accident;
9.2.3 import or export regulations or embargoes;
9.2.4 labour disputes not including disputes involving the Seller’s work-force; or
9.2.5 inability to obtain or delay in obtaining supplies of adequate or suitable material, fuel, parts, machinery or labour.
10. PASSING OF PROPERTY AND RISK
10.1 Risk of damage to or loss of Goods shall pass to the Buyer upon delivery to the Buyer or its agent.
10.2 Ownership of the Goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of:
10.2.1 the Goods; and
10.2.2 all other sums which are or which become due to the Seller from the Buyer on any account.
10.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
10.3.1 hold the Goods on a fiduciary basis as the Seller’s bailee;
10.3.2 store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property;
10.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
10.3.4 maintain the Goods in satisfactory condition.
10.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
10.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value and the Buyer shall account to the Seller accordingly for the Goods;
10.4.2 any such sale shall be a sale of the Seller’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale;
10.4.3 the Buyer’s right to resell the Goods shall cease upon the termination of the Contract; and
10.5 Where the Seller is unable to determine whether any goods are the Goods, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.
10.6 The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
10.7 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them and if necessary to dismantle them from anything to which they are attached.
10.8 If before making payment for the Goods the Buyer ceases to trade or commits any act of bankruptcy or if a Receiver of the Buyer’s undertaking is appointed the Seller may recover the Goods from the Buyer.
11.1 The price for the Goods is based on the cost of materials, labour, sub-contracts, transport, taxes, duties and currency exchange rates ruling at the date of quotation. The Seller reserves the right to amend the Contract price to take account of any variations in these costs or any new taxes or duties occurring from whatever cause before delivery of the Goods. In the event of such an amendment of the contract price, the Buyer has the right to terminate the contract by serving written notice on the Seller within 7 days of the Buyer being notified of the amendment.
11.2 The price for the Goods is exclusive of any value added tax or any other applicable tax which the Buyer shall pay in addition when it is due to pay for the Goods.
11.3 The price for the Goods is given on an ex-works basis (unless agreed otherwise by the parties) and where the Delivery Point is other than at the Seller’s premises the Buyer shall pay the Seller’s charges for packaging, loading and insurance in addition when it is due to pay for the Goods.
12. TERMS OF PAYMENT
12.1 The Seller may invoice the Buyer for the Goods at any time after delivery.
12.2 Unless otherwise agreed in writing payment in full for the price of the Goods is due within 30 days from the end of the month following the month in which the Goods are invoiced.
12.3 Time for payment shall be of the essence.
12.4 No payment shall be deemed to have been received until the Seller has received clear funds.
12.5 All payments payable to the Seller under this Contract shall become due immediately upon termination of this Contract despite any other provision.
12.6 The Buyer shall make all payments due under this Contract without any deduction whether by way of set-off, counterclaim or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
12.7 The Seller may appropriate any payment made by the Buyer to the Seller to such of the Goods as the Seller thinks fit despite any purported appropriation by the Buyer.
12.8 The Buyer shall be liable for interest at the rate of 4 per cent per annum above Barclays Bank Base Rate upon so much of the amount of the invoice that shall remain unpaid after the due date until the day payment is received, provided that no time or indulgence granted by the Seller shall prejudice the Seller’s rights to recover all amounts unpaid together with interest at any time after the due date.
13.1 The Contract will terminate immediately upon the happening of any one or more of the following events; the Buyer has a bankruptcy order made against him/it or makes an arrangement or composition with his/its creditors or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory), except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver, manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer.
13.2 The Contract will terminate immediately upon service of written notice of termination by the Seller on the Buyer on the happening of any one or more of the following; the Buyer suffers or allows any execution whether legal or equitable to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations or duties under the Contract or any other contract between the Seller and the Buyer or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade.
13.2.1 The Seller’s rights contained in condition 10 (but not the Buyer’s rights) shall continue beyond the discharge of the Buyer’s and the Seller’s primary obligations under the Contract consequent upon its termination.
13.2.2 The termination of the Contract howsoever arising shall be without prejudice to the rights and duties of either the Buyer or the Seller accrued prior to termination.
14.1 Time for performance of all obligations of the Buyer is of the essence.
14.2 Each right or remedy of the Seller under this Contract is without prejudice to any other right or remedy of the Seller whether under this Contract or not.
14.3 Any provision of this Contract which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the other provisions of this Contract and the remainder of such provision shall not be effected.
14.4 Failure by the Seller to enforce or partially enforce any provision of this Contract will not be construed as a waiver of any of its rights under this Contract.
14.5 The parties to this Agreement do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
14.6 The formation, construction, performance, validity and all aspects of this Contract are governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.
Company Registered in England, registration number: 03055926.
Reg. office: CuBrAlco Ltd., Drayton Court, Drayton Road, Solihull, West Midlands B90 4NG. UK
Directors: C. J. Egginton, R. P. Egginton
VAT Registration Number: GB 670053264
Our Sales contact details are:
CuBrAlco Ltd, Ricketts Close, Firs Industrial Estate, Kidderminster, Worcestershire, DY11 7QN U.K.
Telephone: 01562 825152