OMSER (Scotland) Limited -
STANDARD TERMS AND CONDITIONS OF SALE
1 APPLICABLE TERMS
1.1 Any quotation given by OMSER (Scotland) Ltd, Ferniecleugh, School Road, Gartocharn, West Dunbartonshire G83 8RT (the “Seller”) for the sale of goods is an invitation to the buyer (the “Buyer”) to make an offer only and no order placed by the Buyer with the Seller in pursuance of a quotation or otherwise shall be binding on the Seller unless and until it is accepted in writing by the Seller’s acceptance of order form or delivery note, or the goods are despatched or the work is commenced.
1.2 Any contract made with the Seller for the sale of goods or work shall incorporate and be subject to these conditions and any representation or warranty, written or orally made or given prior to the contract is hereby expressly excluded and all websites, brochures, specifications, catalogues, particulars, descriptions and illustrations, price lists and other advertising matter are intended only to present a general idea of the goods described therein.
1.2.1 Specifications quoted by the Seller must be treated as approximate only and the Seller reserves the right to amend without notice at any time prior to delivery, the specifications, or material of the product(s) supplied.
2.1 All prices are exclusive of transport, packing and VAT, unless otherwise specified.
2.2 The Seller reserves the right to vary its prices without notice to the Buyer and the price payable by the Buyer shall be the price ruling at the date of delivery.
2.3 Prices in relation to a given quantity of goods may be based upon a continuous production run of that quantity unless specifically otherwise stated, such continuous run being at the Seller’s discretion. If the Buyer reduces the quantity of goods ordered, which necessitates a production run of a lesser quantity, the price applicable to the lesser quantity shall apply and if not covered by quotation, reasonable adjustment of price shall be made by the Seller.
3.1 Unless otherwise agreed in writing all accounts must be paid within 30 (thirty) days of invoice date.
3.2 If at the date on which the Seller is ready to despatch or deliver the goods the Buyer delays delivery for any reason, the Seller may present invoices for full settlement on that date, in default of payment and without prejudice to any other rights or remedies the Seller reserves the right to demand payment of all outstanding balances whether or not due and/or cancel all outstanding orders.
3.3 The Seller reserves the right to charge interest on overdue accounts at the rate of 8% per month to run from the date of due payment until receipt by the Seller, such interest to continue before and after judgement until payment is received by the Seller.
3.4 The Buyer shall not be entitled to withhold or set-off payment for goods delivered or work done for any reason whatsoever.
3.5 In the event of any breach of these conditions of sale the Seller shall be entitled without prejudice to its other rights hereunder to suspend all further deliveries and/or determine the contract or any unfulfilled part thereof and the Buyer shall be responsible for any resulting loss to the Seller.
4.1 This contract shall be subject to the provision that if at any time thereafter the Seller is advised of circumstances casting doubt on the Buyers creditworthiness or satisfactory security for payment is not given on request or the Buyer is in default in payment for other goods, the Seller may require payment of the whole or part of the purchase price from the Buyer in advance and of the full price of all other goods sold to the Buyer by the Seller and pending such payments this contract shall be suspended. In the event of such payments not being made within a reasonable period stipulated by the Seller, the Seller may cancel the Buyers order without liability and the Buyer shall be responsible for any resulting loss to the Seller.
4.2 In the event of any breach of these conditions of sale not being remedied by the Buyer within 7 (seven) days of the Sellers written notice requesting such remedy or upon the Buyer entering into any composition or arrangement with its creditors or passing a resolution for winding up the entering into liquidation (whether voluntary or compulsory) or any similar arrangement or a receiver is appointed of the Buyers assets, the Seller shall be entitled without prejudice to its other rights hereunder to suspend all further deliveries and/or determine the contract or any unfulfilled part thereof and the Buyer shall be responsible for any resulting loss to the Seller.
5.1 The risk in respect of all goods sold under the contract shall pass to the Buyer upon the delivery of the goods by the Seller its servants or agents at the address nominated by the Buyer in the order and before unloading. In any event the property in the goods shall not pass to the Buyer except as provided in clause 6 hereof.
6 TITLE RETENTION
6.1 Until the purchase price of the goods comprised in this or any other contract between the Buyer and the Seller shall have been paid or satisfied in full (if by cheque then only upon clearance):-The property in the goods comprised in this contract remain vested in the Seller (notwithstanding the delivery of the same and the passing of the risk therein). The Buyer shall on request inform the Seller of the precise location of each item of the goods identified where applicable by its serial number, by supplying the Seller at its expense within 7 (seven) days of its request with a written schedule of the said locations.
6.2 The Buyer may sell the goods as the Seller’s agent in the normal course of the Buyer’s business and may pass good title to the Buyer’s customer being a bona fide purchaser for value without notice of the Seller’s rights on the following conditions:-
a) The Seller may at any time revoke the Buyer’s said power of sale in the event of any breach of these conditions.
b) The Buyer’s power of sale shall automatically cease in the event of a breach of Clause 3 of these Conditions.
c) The Buyer shall notify the Seller without delay of any attachment of the goods or actions by third parties which might infringe the Seller’s title to the goods.
6.3 Upon determination of the Buyer’s power of sale the Seller shall be entitled by itself its servants or agents to enter upon any of the Buyer’s premises for the purpose of removing and repossessing such goods and the Seller shall be entitled to claim from the Buyer the costs and expenses incurred by the Seller in and ancillary to the process of such removal and repossession.
7 TITLE RETENTION (SCOTLAND)
In the case of sales of goods in Scotland, clause 6.1 hereof shall not apply, and in place thereof there shall be substituted the following clause (and for the avoidance of doubt sub-clauses 6.1.1 to 6.1.4 and clause 6.2 shall continue to apply):
“6.1 Until the purchase price of the goods comprised in this contract between the Buyer and the Seller shall have been paid in full:”
8.1 Any dates given in the contract for despatch or delivery of goods or completion of the work (as the case may be) shall constitute estimates of expectation only and shall not be binding unless the contract otherwise expressly provides in writing and subject to the provisions of sub-clauses 7.4 and 7.5 below the Buyer shall accordingly accept delivery of the goods when tendered and the work when completed.
8.2 The method and route of despatch of the goods shall be selected by the Seller which shall endeavour to take into account in such selection the preferences of the Buyer.
8.3 If notwithstanding the Seller’s endeavours the Seller fails to despatch or deliver the goods or to complete the work by such date, such failure shall not constitute a breach of the contract and the Buyer shall not be entitled to claim compensation for such failure or for any consequential loss or damage resulting there from.
8.4 Subject to the provisions of sub-clause 7.3 above, where despatch or delivery or completion of the work is delayed by more than 30 (thirty) days beyond the date given in the contract, the Buyer shall grant the Seller a reasonable extension period and if upon the expiry of the extension period the goods have not been despatched or delivered or the work has not been completed, the Buyer may forthwith by notice in writing terminate the contract and in such circumstances the Buyer shall pay at the contract rate for all goods sold or work done by the Seller to the actual date of termination and neither party shall have any further liability to the other in respect of the goods undelivered or work not completed.
8.5 If at the date on which the Seller is ready to despatch or deliver the goods the Buyer delays acceptance thereof for any reason whatsoever, the goods will be stored by the Seller but the Buyer shall pay to the Seller an amount equivalent to what the Buyer would be liable to pay if the goods had in fact been despatched or delivered together with reasonable storage charges for the period of delay and the cost of any additional handling and transporting incurred. If on the expiry of 30 (thirty) days after the date on which the Seller is ready to despatch or deliver the goods the Buyer has not accepted the goods, The Seller reserves the right immediately to cancel the Buyer’s order. This cancellation shall entitle the Seller to dispose of the goods and obtain from the Buyer compensation for loss of profit in addition to any other sums due to the Seller under these conditions.
8.6 All claims must be made within 7 (seven) days.
8.7 When deliveries are spread over a period, each consignment will be despatched and each notice will be treated as a separate account and payable accordingly.
8.8 At the option of the Seller, goods sold to the Buyer may be delivered in two or more instalments and, in that event, each instalment shall be deemed to form a separate contract and failure to deliver or defective delivery of any one instalment shall not constitute a breach of contract in respect of other instalments.
9 CONTRACTS FOR WORK
9.1 I f the contract is for and includes work to be done by the Seller whether of installation commissioning repair rectification or improvement, then unless the contract otherwise provides the following additional provisions shall apply thereto:
9.1.1 The Seller shall be obliged to carry out such work only during the Seller's normal working hours, if the Buyer requests that overtime be worked and the Seller agrees thereto such overtime shall be paid for by the Buyer at the rate stipulated by the Seller. If the work is to be carried out at the Buyer's premises or on the Buyer's request at the premises of any other person then the Buyer shall undertake to provide or to procure the provision of
A) proper and safe storage and protection of all goods, tools, plant equipment and materials on site
B) free and safe access to the site and to the place at which the work is to be carried out
C) all facilities and services necessary to enable such work to be carried out safely and expeditiously
D) (if such work includes the installation of any goods) all builders work, foundations, cutting away and making good required and the ready availability of all plan and equipment so as to permit the goods to be tested forthwith on completion of such work.
9.2 The Buyer shall pay to the Seller the amount of any expense incurred by the Seller by reason of any breach by the Buyer of its undertakings in sub-clause 9.1 above (but without prejudice to the Seller's rights to recover further damages therefor) and a certificate of the Seller's auditors certifying such amounts shall be conclusive and binding upon the Buyer and the Seller.
10.1 The goods sold or work carried out by the Seller pursuant to the contract shall as soon as practicable and in any event within 30 (thirty) days after delivery thereof be inspected and tested by the Buyer. The Buyer shall lodge with the Seller in writing within 7 (seven) days after the conclusion of the said inspection and testing any claims in respect of defects which are apparent upon such inspection and testing.
10.2 Defects which are not detectable by a careful examination within 30 (thirty) days after delivery shall be notified as soon as they are discovered but in any event no later than 12 (twelve) months after the delivery of the goods to the end user or.
10.3 The Seller shall make good either by repair or replacement or renewal at its option defects which under proper storage and use appear in the goods or work within the time limits set out in Clauses 10.1 and 10.2 and which arise solely from faulty material or workmanship provided that:-
10.3.1 Such defects have not been caused by misuse, neglect, accident, improper storage installation or handling, frost damage or by repair or alteration not effected by the Seller (including the attachment or connection to the goods of any devices or accessories other than those distributed or officially recommended by the Seller) or non-compliance with the Seller’s operators’ instructions manual.
10.3.2 This warranty shall only apply to goods sold within the U.K.
10.3.3 The Buyer at all times shall have used in the operation of the goods only the proper electrical supply voltage, an uncontaminated water supply, and suitable chemicals.
10.4 Save as aforesaid and save in respect of death or personal injury resulting from the negligence of the Seller its servants or agents, the Seller shall not be liable for any claim or claims for direct or indirect consequential or incidental injury loss or damage made by the Buyer against the Seller whether in contract or tort (including negligence on the part of the Seller its servants or agents) arising out of or in connection with any defect in the goods or work or any act, omission, neglect or default (whether or not the same constitutes a fundamental breach of the contract or breach of a fundamental term thereof) of the Seller its servants or agents in the performance of the contract.
10.5 The Buyer accepts as reasonable that the Seller’s total liability for any goods or work which are defective shall be as set out in these conditions: in fixing that limit the Seller has had regard to the contract price of the goods, the nature of the goods, the use they will receive and the resources available to each party including servicing facilities and insurance cover, to meet any liability.
11.1 The Seller retains a general lien on any of the Buyers equipment or other goods on the Sellers possession for any unpaid balance the Buyer may owe to the Seller.
12.1 The Seller will make available on written request such information or the design and construction of the goods as is its possession to ensure that as far as its reasonably practicable it is reasonably safe and without risk to health when properly used.
13 DATA PROTECTION
13.1 Each party shall comply with its respective obligations under the Data Protection Act 1998 (DPA) in relation to all Personal Data (as defined in the DPA) that is processed by it in the course of performing its obligations under this Agreement
13.2 Without prejudice to the generality of clause 13.1, the Company shall maintain sufficient technical and organisational measures to prevent unauthorised or unlawful processing of Personal Data and to prevent any loss, destruction or unauthorised disclosure of Personal Data.
14.1 The Buyer must obtain consent from the Seller before returning any goods.
14.2 The Seller shall be under no obligation to give credit for goods correctly supplied and/or specially ordered by the client.
14.3 No credit will be given by the Seller in respect of delivery/transit charges levied by the Seller, or incurred by the Buyer.
14.4 The Seller reserves the right to levy a 25% restocking charge on any goods returned for credit.
14.5 Goods incorrectly supplied by the Seller may be returned to the Seller for credit of the Buyer provided that the goods are returned within 7 (seven) days of delivery and provided they are unused/undamaged and returned in the same condition as when delivered to the Buyer.
15.1 All artwork, submitted by the Buyer is subject to the Sellers approval. Additional charges for any retouching and/or rework will be notified and invoiced to the Buyer.
15.2 One photo proof will be furnished for each item. Additional proofs can be made on request. Corrections after photo proof has been submitted will involve additional cost.
16.1 WAIVER - The waiver by the Seller of any breach of any term hereof shall not prevent the subsequent enforcement of that term and shall not be deemed a waiver of any subsequent breach.
16.2 SEVERANCE - Should one clause hereof be invalid the provisions of the remainder hereof shall not be affected and in such case the parties hereto shall co-operate to agree replacement terms which are legally valid in order to achieve as nearly as possible the original intentions of the parties particularly regarding the economic effect of such clause.
16.3 ENTIRE AGREEMENT - This document contains the whole terms of the contract and no alteration or variation of the terms of the contract shall be valid unless agreed and made in writing by an authorised officer of the Seller, and no waiver of any breach by either party of the terms of the contract shall prejudice the Seller’s strict legal rights hereunder. In the event of any conflict between these terms and any other terms or conditions these terms will prevail.