1. In these conditions “the Seller” means UPM Conveyors Ltd of Slough, “the Buyer” means the person, firm or company purchasing the goods or services which shall be the subject of the contract between the Seller and the Buyer.
2. Acceptance of Order
Except so far as the Seller and the Buyer expressly agree in writing to the exclusion or modification of these conditions, all orders are accepted by the Seller subject to these Conditions of Sale which override any other terms of conditions stipulated or incorporated or referred to by the Buyer, whether in the order, or in any negotiations, and so that the Conditions of Sales are the only terms or conditions upon which the Seller sells or supplies the Goods. The contract for the sale of the Goods between the Seller and the Buyer shall be deemed to have been made when the Seller informs the Buyer that its acceptance of the Buyer’s order and the Goods relative to such contract shall be those stated in such acceptance.
3. The Price
(i) Where the cost to the Seller of producing and/or delivering the Goods increases after the Seller has accepted the Buyer’s order, (by reason of factors beyond the control of the Seller) the Seller may at any time before delivery by notice to the Buyer increase the price of the Goods by the amount attributable to such increase in cost and the Buyer shall have the option of paying or cancelling the contract in full or part.
(i) Save as provided herein the terms of payment shall be those as stated on the Seller’s acknowledgement of the order or as stated on the invoice.
(ii) The time for payment shall be the essence of the Contract and the title of the Goods so delivered and invoiced shall remain with the Seller until the full payment for the goods have been received by the Seller.
(iii) Whereas the Seller has agreed with the Buyer to supply the Goods so ordered upon terms agreed by way of the Buyer paying for the Goods in staged payments then such payments with their respective due dates will be recorded on acknowledgment of order and on the Sellers invoice.
In the event that they Buyer is in default at any one stage payment then the Seller has without prejudice to demand payment forthwith of any balance due or alternatively to seek repossession of the goods as supplied without the Buyer having any right to the return of any monies so paid by the Buyer as any stage payment, deposit etc.
Unless otherwise agreed in writing between the Seller and the Buyer the following provisions shall apply:-
(i) Property and Risk
Upon delivery of the Goods they are at the Buyer’s risk although the title of the said Goods shall not have passed to the Buyer until full payment has been received by the Seller. Where the Buyer collects the Goods by his own or contracted vehicle then the risk shall operate from the Seller premises.
(ii) Date of Delivery
All delivery dates are estimates only. The Seller shall not be liable for failure to deliver by such dates or for any damages or loss arising directly or indirectly out of delay in delivery, nor shall the Buyer be entitled to refuse to accept the Goods because of late delivery.
(iii) Tender and Deliveries
If the Buyer fails to require the delivery of the Goods when delivery falls due or refuse to accept delivery the Seller shall be entitled to recover the costs caused by the delay and to require the Buyer to pay for the Goods in accordance with the terms of payment as if the Goods have been delivered.
(iv) Installation and Erection
The Seller may be prepared to make available the services of its fitters for commissioning the Goods. Where Goods require to be commissioned and the services described above are not required by the Buyer, the warranty expressed in sub-paragraph (i) of paragraph 7 of the Conditions is hereby excluded. The services of the Seller’s fitters and other personnel are charged for according to a special agreement on the basis of the Seller’s special terms for this work. Labourers and also lifting equipment, lubricants and cleaning materials, as required are to be put at the fitter’s disposal free of charge even in cases where the commissioning is included in the price for the Goods supplied.
6. Shortages And Damages and/or Loss in Transit
(i) The Buyer shall inspect the Goods immediately upon delivery and shall within fourteen days of such delivery (time being of the essence) give notice to the Seller of any matter of thing by reason whereof it alleges that the Goods are not in accordance with the contract. Any delivery book or note marked “Not Examined” will not be accepted by the Seller for the purposes of this sub-paragraph.
(ii) If the Buyer shall fail to give such proper notice as is required hereunder then the Goods shall be deemed in all respects to be in accordance with the contract and the Buyer shall be deemed to have accepted the Goods.
(iii) The Goods in respect of which the Buyer makes any claim hereunder shall be preserved intact as delivered for a period of fourteen days from notification of the claim within which time the Seller or its agents shall have the right to attend at the Buyer’s premises to investigate the complaint. Any breach of this condition shall dis-entitle the Buyer to any remedy in respect of his claim.
(iv) Goods represented by the Buyer to be defective or not to conform to the contract shall if authorised by the Seller be returned and in the Seller’s absolute discretion shall either be replaced or be credited. The Buyer shall not be entitled where the Goods are to be delivered by instalments to cancel any undelivered balance of the order without the prior written consent of the Seller.
7. Warranty and Limitation of Liability
(i) The Seller warrants that the Goods are produced within accepted tolerance levels in accordance with the standard specifications stated in the Seller’s official literature on the Goods current at the relevant time. Save as aforesaid, all other conditions, guarantees or warranties whether express or implied by statue, common law or otherwise including (but without prejudice to the generality of the foregoing) conditions or warranties as to quality, fitness for purpose or description of the Goods or their life or wear of use under any conditions whether known or made known to the Seller or not are hereby excluded. The warranty will be invalidated if the goods are misused or used for a purpose not advised to the Seller prior to purchase or used in an environment not specified by the Buyer to the Seller
(ii) Whilst the utmost care is taken to ensure the accuracy of any information date and advice furnished to the Buyer such information and date shall not subject as provided in paragraph (i) above be deemed to form part of the contract for the sale of the Goods and the Buyer shall at the time the contract is made be deemed to have carried out its own investigations and tests of the Goods.
(iii) The Sellers liability for any and all direct loss or damage resulting to the Buyer from defective Goods or from any other cause whatsoever shall be limited to the purchase price of the Goods in respect of, or in relation to which such loss or damage is claimed unless the Seller shall have replaced such defective Goods with Goods conforming in a all respects with the contract in which event the Seller shall be under no further liability to the Buyer. Subject as aforesaid the Seller shall be under no liability in contract or in tort for any injuries, losses, expenses or damage direct or in-direct and in particular but without prejudice to the generality of the foregoing, any consequential loss, in each case arising out of consequent upon or attributable to the contract for the sale of Goods or the supply or use of the Goods and/or any containers and or/packages of the Buyer third party having made use of or adopted in whole or in part any information or data or advice given by, or on behalf of the Seller in relation to the Goods or their use.
(iv) The Buyer shall indemnify the Seller at all times in respect of all damage or injury occurring to any person, firm, company or property and against all actions, suits, claims and demands, charges or expenses in connection therewith for which the Seller may become liable in respect of the goods sold under the contract save where the Seller has been in breach of its warranty in paragraph (i) of this condition.
(v) Whilst every care has been taken to comply with the requirements of the Health & Safety at work etc., Act 1974 and regulations made thereunder, the Seller does not guarantee to be in conformity with the requirements of the act or of those regulations and so far as permitted by those regulations accept no liability for any claims arising from any breach of duty imposed by those regulations.
(vi) The foregoing paragraphs 7(i) and 7(iv) inclusive shall apply save that if any act of Parliament or other statutory provision s for the time being in force shall avoid or make unenforceable any of the provisions thereof such 8.
Cancellation of Orders
Subject as herein provided orders for Goods may not be cancelled or suspended without the Sellers written consent. Any cancellation or suspension of an order is acceptable only on the express condition that the Seller shall be indemnified against any loss incurred wholly or in part by the cancellation or suspension.
9. Force Majeure
The Seller shall not be liable in any way for loss or damage arising or indirectly through or in consequence of delivery of the Goods being prevented or delayed by happenings or occurrences due to or by reason of mobilisation, hostilities, acts of the Queen’s enemies of war (whether declared or not), Government action, departmental instructions or act of God, riots, combination of workmen, lockouts, strikes or disturbances wherever taking place, want of raw materials or fuel in consequence of non-delivery, or any other causes, want of transport accidents, fire, flood, blocking of or accidents to aeroplanes, shipping or railway lines, failure of ships to sail at advertised times, reduction or stoppage of output at the works where the Goods are being manufactured through fire, flood, heat, frost, storm, tempest or intemperate weather, holidays, breakdowns, accidents to machinery, late provision to the Seller of any materials, information, or instruction, pertinent to the fulfilment of the order for the Goods by the Seller, or any other causes of any circumstances whatsoever beyond the Seller’s control or any acts of third parties whether criminal or otherwise, and in these circumstances the Seller expressly reserves the right to cancel or suspend the whole or any part of the any delivery.
If the Buyer shall commit any breach of these conditions or if any distress of execution shall be levied upon any of the property of assets of the Buyer or if the Seller has reasonable cause to believe the Buyer shall be unable to pay the Seller for the Goods or if the Buyer shall suspend payment of its debts or make any arrangements with its creditors or being a company have receiver appointed for its assets, or pass any resolution to be wound up or being a person shall commit any act of bankruptcy, or have any bankruptcy petition presented against him, then in any such ever the Seller shall without prejudice to any other rights and remedies it might have and without any liability whatsoever be at liberty forthwith by notice to the Buyer.
(i) To cancel all orders and contracts or any part thereof remaining unfulfilled between the Seller and the Buyer for the delivery of the Goods.
(ii) Whereby the title of the Goods shall not have passed from the Seller to the Buyer as referred to in clause 4
(ii) hereof then the Seller by themselves, their servants or agents to have access to the Buyer’s premises for the protection and/or removal or realisation and disposal of the Goods at any time.
(iii) Where the Buyer sells on the Goods, to a third party before title has passed to the Buyer as referred to in clause 4
(ii) then the proceeds of such sub-sale are to be held by the Buyer to the account of the Seller.
11. Patents and Trademarks
No representation, warranty or indemnity is given by the Seller that the Goods do not infringe any letters, patents, trademarks, registered designs or other industrial rights.
The contract of which these conditions form part is personal to the Buyer who shall not assign the benefit thereof without the Sellers written consent.
No notice to be given hereunder shall be valid unless in writing and sent by first class pre-paid post to the Seller at the address shown hereon or to the Buyer at the address shown on the Buyer order or at the address which the Seller reasonably believe that the Buyer is holding the Goods in question. Said notice shall be deemed delivered 48 hours after posting.