Lochrin Bain Ltd
Terms and Conditions of Trading
1. Interpretation
1.1 In these Conditions:
“Company” means Lochrin Bain Limited.
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Company.
“Contract” means the contract for the purchase and sale of the Goods as constituted by the Order and the Conditions.
“Customer” means the person specified in the Order.
“Goods” means the goods (including any delivery and/or instalment of the Goods or any parts for them) specified in the Order.
“Order” means the order form to which the Conditions are attached.
“Quotation” means any quotation which is given by the Company to a prospective Customer.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the Contract
2.1 All Quotations are made and all Orders are accepted subject to the following Conditions. All conditions of the Customer or other terms, conditions or warranties whatsoever are excluded from the contract or any variation thereof unless expressly accepted by the Company in writing.
2.2 Quotations shall only be available for acceptance for a maximum period of 30 days from the date thereof and may be withdrawn by the Company within such period at any time by written or oral notice.
2.3 If any statement or representation upon which the Customer relies has been made to the Customer other than in the documents enclosed with the Company’s Quotation or acknowledgement of Order the Customer must set out that statement or representation in a document to be attached to or endorsed on the Order in which case the Company may clarify the point and submit a new Quotation.
2.4 Any illustrations, performance, details, examples of installations and methods of assembly and any other technical data issued by the Company is provided for general guidance only and forms no part of the contract unless expressly agreed in writing.
3. Orders and Specifications
3.1 The Customer shall be solely responsible for ensuring that all drawings, information, advice and recommendations given to the Company either directly or indirectly by the Customer or by the Customer’s agents, servants, consultants 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 hereunder unless the Company specifically agrees in writing to accept responsibility
3.2 The quantity, quality and description of and any specification for the Goods shall be those set out in the Order.
3.3 Notwithstanding the terms of Clause 3.2, the Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or regulatory requirements of any competent authority of valid jurisdiction or, where the Goods are to be supplied to the Customer’s specification, to alter or change dimensions of the Goods supplied within reasonable limits which do not materially affect their quality or performance. All weights and dimensions quoted are subject to normal commercial tolerances.
3.4 The Customer shall indemnity the Company from and against all loss, damages, actions, claims, costs and expenses awarded against or incurred by the Company in connection with the Goods which arise from the Company’s use of the Buyer’s drawings and specifications where such drawings and specifications are at fault.
3.5 The Customer shall indemnify the Company from and against all loss, damages, actions, claims, costs and expenses paid or agreed to be paid by the Company in settlement of any claim for infringement of the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other persons which results from the Seller’s use of the Buyer’s specification.
4. Prices
4.1 All prices are unless otherwise stated quoted net, ex works and exclusive of value added tax (“VAT”), which the Customer shall be additionally liable to pay to the Company. The Customer shall be additionally liable to pay the Company’s charges for transport, packaging and insurance.
4.2 Prices are subject to fluctuation in the event of any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, increase in the costs of labour due to local or national awards or increases in the cost of materials, overheads and other costs of manufacture). Any increase in such costs during the period of production will be added to the quoted price.
4.3 The Company reserves the right by giving notice to the Customer to make an adjustment to the Contract price to reflect any increase in the cost to the Company which is due to any alteration in delivery dates, quantities, designs or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
4.4 The cost of pallets and returnable containers (if any) will be charged to the Customer in addition to the price of the Goods, but full credit will be given to the Customer provided they are returned undamaged to the Company before the due payment date.
5. Terms of Payment
5.1 The Customer shall make payment of the price thirty days after month of invoice.
5.2 The Company shall be entitled to submit its invoice with its delivery advice note or at any time thereafter save that where delivery has been postponed at the request of or by default of the Customer then the Company may submit its invoice 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.
5.3 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.
5.4 No disputes arising under the contract nor delays beyond the reasonable control of the Company shall interfere with prompt payment in full by the Customer.
5.5 In the event of default in payment by the Customer the Company shall be entitled without prejudice to any other right or remedy:
5.5.1 To suspend all further deliveries on any contract or contracts between the Company and the Customer without notice; and
5.5.2 To charge interest on any amount outstanding at the rate of 5% per annum above the base rate of the current Bank of Scotland base rate from the date such sums become due until the date of actual payment.
6. Delivery
6.1 Time for delivery is given as accurately as possible but is not guaranteed and shall not be of the essence of the Contract unless previously agreed by the Company in writing. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer. The Customer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery time stated.
6.2 The date of delivery shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Customer. Alterations by the Customer in design specifications or quantities required may result in delay in delivery.
6.3 The Company will endeavour to comply with reasonable requests by the Customer for postponement of delivery but shall be under no obligation to do so. Where delivery is postponed otherwise than due to default by the Company the Customer shall pay all costs and expenses including a reasonable charge for storage and transportation occasioned thereby and the Company shall be entitled to invoice the Goods in accordance with these Conditions.
6.4 Where delivery of the Goods is to be made by the Company in bulk, the Seller reserves the right to deliver up to 10 per cent more or 10 per cent less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
6.5 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.6 Unless otherwise expressly agreed any packaging supplied by the Company is intended to be only sufficient to protect the Goods for all normal conditions of transit and for the normal period of transit only.
6.7 The Customer shall ensure that there is good and sufficient access for lorries to the point where delivery vehicles are required to unload.
6.8 Where the Contract does not require the Company to perform erection on site then the unloading of the delivery vehicles shall be undertaken by and be the responsibility of the Customer.
7. Work on site
7.1 Where the contract with the Company requires the performance of works by the Company on site then unless otherwise stated in the Company’s quotation or otherwise accepted by the Company in writing the following shall be conditions of the contract:
7.1.1 All site work can be carried out by the Company if it so desires in one continuous operation through to completion;
7.1.2 There is good digging ground free from subterranean obstructions and mechanical tools (compressors and breakers) will not be required;
7.1.3 Lines and levels will be given to the erectors of the Company by the Customer or it’s surveyor;
7.1.4 There will be free access to both sides of the fence line; and
7.1.5 There will be a safe storage area to be provided for the Company’s material on site.
7.2 If the Company incurs extra costs in the performance of the contract either by reason of alteration in the Customer’s instructions or the lack of or delay in receipt of such instructions or by reason of unforeseen interruptions delay overtime requirements, unusual hours, mistakes or additional or varied works in circumstances where the Company is not responsible therefore then the Company may increase the contract price to cover such extra costs and to allow for overheads and profit thereon.
8. Cancellation
Cancellation will only be agreed by the Company on condition that 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.
9. Risk and Property
9.1 Risk shall pass to the Customer so that the Customer is responsible for all loss, damage or deterioration to the Goods:
9.1.1 If the Company delivers the Goods by its own transport at the time when the Goods or a relevant part thereof arrive at the place of delivery; or
9.1.2 In all other circumstances at the time when the Goods or a consignment or other part there of leave the premises of the Company whether or not the Company arranges transport and where the Goods are delivered by carrier any claims for loss or damage in transmit must be made by the Customer against the carrier in accordance with the carrier’s conditions.
9.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall pass to the Customer when the Company 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 Company to the same Customer for which payment is then due.
9.3 The Customer shall permit the servants or agents of the Company to enter on to the Customer’s premises and to repossess the Goods at any time prior to the property in the Goods passing to the Customer. In the event of the Goods being at the premises of a third party by the direction of the Customer then the Customer shall, if so required by the company in writing, remove the Goods from such premises and return them to the Company forthwith.
10. Warranties and Liability
10.1 Subject to the conditions set out below (and with specific reference to the terms of Clause 10.3) the Company warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of twelve months from the date of delivery.
10.2 The above warranty is given by the Company subject to the following conditions:
10.2.1 The Company shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Customer;
10.2.2 The Company shall be under no liability in respect of any defect in the Goods arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, inadequate or unsuitable storage, failure to follow the Company’s instructions (whether oral or in writing), misuse or any alteration or repair of the Goods undertaken without the prior specific consent of the Company;
10.2.3 The Company shall be under no liability in respect of loss or damage suffered by reason of use or installation of the Goods after the Customer becomes aware of a defect or after circumstances which should reasonably have indicated to the Customer the existence of a defect;
10.2.4 The Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment; and
10.2.5 The above warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
10.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.4 In the event that these Conditions should entitle the Customer to claim damages or to repudiate the contract the Customer shall not then do so but shall first ask the Company to repair or supply satisfactory substitute Goods. The Company shall thereupon be entitled at its option to repair or take back the defective Goods and to supply satisfactory substitute Goods free of cost and within a reasonable time or reimburse the purchase Price thereof. If the Company does so repair the goods or supply satisfactory substitute Goods the Customer shall be bound to accept such repaired or substituted Goods and the Company shall be under no liability in respect of any loss or damage whatsoever arising from the initial delivery of the defective Goods or from the delay before the defective Goods are repaired or the substitute Goods are delivered.
10.5 The Customer shall have no claim for defects in the quality or condition of the Goods or their failure to correspond with their specification which should be apparent on visual inspection at the time of delivery unless the shortages or defects are brought to the attention of the driver of the delivery vehicle and are clearly marked on the signed copy of the delivery note at the time of delivery. The Customer acknowledges that rust, oxidation or discolouration is a defect which it is reasonable for the Customer to be expected to notice at the time of delivery.
10.5.1 The Customer shall have no claim for defects or failures capable of being apparent on subsequent visual inspection (not being defects or failures falling within Clause 10.5.2 below) unless:
- (1) The Customer inspects the Goods and notifies the Company by telephone or electronic communication before fixing or otherwise using the goods or cutting or removing bands, and in any event within three working days of arrival at its premises or other agreed destination; and
- (2) A written complaint is made to the Company before fixing or otherwise using the goods and in any event within seven days of receipt of the Goods or such shorter period as the carrier’s conditions (if applicable) require specifying the shortage or defect; and
- (3) The Company is given an opportunity to inspect the Goods and investigate any complaint before use is made of the Goods.
If a complaint is not made to the Company as herein provided 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.
10.5.2 The Customer shall have no claim in respect of defects or failures not apparent on visual inspection at the time of delivery or within three working days thereafter (and, for the purpose, rust, oxidation and discolouration shall be regarded as being a defect which is apparent on visual inspection at the time of delivery) unless:
- (1) A written complaint is sent to the Company as soon as reasonable practicable after the defect is discovered and no use (“use” for this purpose being taken to include any sale, disposal or other parting of possession) is made of the Goods thereafter and no alteration made thereto before the Company is given an opportunity to inspect the Goods in accordance with this Condition; and
- (2) The complaint is sent within twelve months of the date of delivery of the Goods or in the case of items not manufactured by the Company within the guarantee period specified by the manufacturer of such item.
10.6 Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including removal or rectification work required in connection with installation of repaired or substitute Goods) or their use or resale by the Customer, and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.
10.7 The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods or for any loss or damage caused if the delay, failure, loss or damage was caused wholly or in part by act of God, governmental restriction, condition or control, any laws, rules or regulations of the country of origin of the Goods, non-arrival of imported Goods, liability to obtain transport or loading facilities or by reason of any act done or not done pursuant to a trade dispute whether such dispute involves its employees or not or by reason of any other act, matter or thing beyond its reasonable control including failure by the other party to carry out the provisions of these Conditions.
11. Insolvency of Buyer
11.1 Clause 11.2 below applies if:
11.1.1 The Customer 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 a voluntary winding up for the purposes of amalgamation or reconstruction); or
11.1.2 An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
11.1.3 The Customer (being an individual) should die; or
11.1.4 The Customer (being a firm or company) ceases, or threatens to cease, to carry on business; or
11.1.5 The Customer should be in default of his obligations under this Contract; or
11.1.6 The Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
11.2 If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract and any other contract between the Customer and the Company in force at the date hereof in whole or in part by notice in writing or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12. General
12.1 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 its 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 notice.
12.2 No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provisions.
12.3 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 provision of these Conditions and the remainder of the provisions in question shall not be affected.
12.4 The Contract shall be governed by the laws of Scotland and the Customer agrees to submit to the non-exclusive jurisdiction of the Scottish courts.
All drawings, documents and other information supplied by the Company are supplied on the express understanding that copyright and other intellectual property rights are reserved to the Company and that the Customers will not without the written consent of the Company either give away, loan, exhibit or sell any such drawing or extracts therefrom or copies thereof or use them in any way except in connection with the Goods in respect of which they are issued. The Company reserves the right to make a reasonable charge for use of any drawings and/or design of any layouts, or any cancelled or non-accepted schemes.