CORE TERMS & CONDITIONS OF SALE
1.1. In these terms and conditions the following words have the following meanings:-
“Buyer” the person(s) or company whose order for the Goods is accepted by the Company;
“Company” Sigma Grp Limited and any of its subsidiaries;
“Conditions” the standard terms and conditions of sale set out in this document and includes any special terms and conditions agreed in writing between the Buyer and the Company;
“Contract” any contract between the Company and the Buyer for the sale and purchase of the Goods;
“Delivery Point” the place where delivery of the Goods is to take place under condition 4;
“Goods & Services” Any goods and services, which the Company is to supply to the Buyer (including any of them or any part of them).
1.2. The headings in these terms and conditions are for convenience only and shall not affect their interpretation.
2. Formation and incorporation
2.1. Subject to any variation under condition 2.4, the Contract will be on these terms and conditions set out below 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).
2.2. Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these terms and conditions.
2.3. Terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, specification or similar document will not form part of this Contract simply as a result of a reference to such document being referred to in this Contract.
2.4. Any variation to these terms and conditions (including special terms and conditions agreed between the parties) and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by the Managing Director or Financial Director of the Company.
2.5. Acceptance of delivery of the Goods shall be deemed to be conclusive evidence of the Buyer’s acceptance of these terms and conditions.
2.6. The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.7. Any quotation is given on the basis that no Contract will come into existence until the Company despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date provided the Company has not previously withdrawn it.
2.8. Subject to condition 4.7 no order which the Company has accepted may be cancelled by the Buyer except with the written agreement of the Company and on terms that the Buyer shall indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses suffered or incurred by the Company as a result of such cancellation.
3.1. The description of the Goods shall be as set out in the Company’s quotation.
3.2. All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues, brochures or websites 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 and this is not a sale by sample.
3.3. The Company 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.
3.4. No variation in the specification or design of any Goods which, in the Company’s reasonable opinion, does not adversely affect the suitability of the Goods for the particular purpose for which they are supplied by the Company will constitute a breach of contract or impose any liability upon the Company.
3.5. Throughout the period for the carrying out of Installation works at the premises the buyer must keep the premises in a suitable condition. During the continuance of the contract the company and any sub-contractors shall be given complete unobstructed access to the premises so that the company may have complete continuity of work at all times. The Buyer shall supply at the Buyers expense adequate water, electric power, light and, if required, earthing points at all times. The company’s standard working day is a minimum of 12 hours and 12 days out of 14 days. Any necessary external security requirements will be provided by the Buyer and at no cost to company.
4.1. Delivery of the Goods shall be made ex-works (Incoterms 2000).
4.2. If carriage is required in accordance with condition 4.1 the Goods shall be delivered by such means as the Company 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.
4.3. 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 as amended.
4.4. Delivery of the Goods shall be made during the Company’s usual business hours.
4.5. Any dates specified by the Company 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.
4.6. Subject to the other provisions of these terms and conditions the Company 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 Company’s negligence) nor unless such delay exceeds 365 days will any delay entitle the Buyer to terminate or rescind the Contract.
4.7. 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 Company’s fault) risk in the Goods will pass to the Buyer (including, without limitation, for loss or damage caused by the Company’s negligence); the Goods will be deemed to have been delivered and (without prejudice to its other rights) the Company may:
4.7.1. store or arrange for the storage of the Goods until actual delivery or sale and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance); and/or
4.7.2. Following written notice to the Buyer, sell any of the Goods at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract.
4.8. If, by any reason of any cause beyond our reasonable control arising after the date of acceptance of the Buyers order, we shall have been delayed in the completion of the work, then any increases in the price of labour or in the price of materials arising directly or indirectly as a result of that delay shall be added to the contract price.
5.1. The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’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. The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless written notice is given by the Buyer to the carrier (where applicable) and the Company within 30 days of the date when the Goods would in the ordinary course of events have been received.
5.3. Any liability of the Company for the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
5.4. A signature of qualified acceptance on a carrier’s delivery note shall not be written notice to either the carrier (where applicable) or the Company for the purpose of these terms and conditions.
6. Force Majeure
6.1. The Company shall not be liable to the Buyer in any manner or be deemed to be in breach of this Contract (subject to condition 11) because of any delay in performing or any failure to perform any of the Company’s obligations under this Contract if the delay or failure was due to any cause beyond the Company’s reasonable control.
6.2. Without prejudice to the generality of condition 6.1 the following shall be included as causes beyond the Company’s reasonable control:
6.2.1. governmental actions, war or threat of war, national emergency, riot, civil disturbance, sabotage or requisition;
6.2.2. Act of God, fire, explosion, flood, epidemic or accident;
6.2.3. import or export regulations or embargoes;
6.2.4. labour disputes not including disputes involving the Company’s work-force; or
6.2.5. inability to obtain or delay in obtaining supplies of adequate or suitable material, fuel, parts, machinery or labour.
6.3. If the delay caused by the force majeure event extends for a continuous period of 3 months after the date on which the force majeure event begins, either the Company or the Buyer may, while such force majeure event continues, terminate this Contract by written notice to the other specifying the termination date without incurring any liability to the other. Once notice to terminate has been validly given, this Contract will end on the termination date set out in the notice.
7.1. Risk of damage to or loss of Goods shall pass to the Buyer upon delivery.
7.2. Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
7.2.1. the Goods; and
7.2.2. all other sums which are or which become due to the Company from the Buyer on any account.
7.2.3. Until ownership of the Goods has passed to the Buyer, the Buyer must:
7.2.4. hold the Goods on a fiduciary basis as the Company’s bailee;
7.2.5. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.2.6. maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
7.2.7. hold the proceeds of the insurance referred to in condition 7.3.3 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
7.3. The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
7.3.1. 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 Company accordingly; and
7.3.2. any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
7.4. Where the Company 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 Company to the Buyer in the order in which they were invoiced to the Buyer.
7.5. The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
7.6. The Buyer grants the Company, 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.
8.1. The price for the Goods shall be specified in writing by the Company in this Contract.
8.2. 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.
8.3. The price for the Goods is given on an ex-works basis and where the Delivery Point is other than at the Company’s premises the Buyer shall pay the Company’s charges for transport, packaging, loading, unloading and insurance in addition when it is due to pay for the Goods.
9.1. The Company may invoice the Buyer for the Goods at any time after delivery or at any other time as agreed between the Buyer and the Company.
9.2. Time for payment shall be of the essence.
9.3. Payment of the price for the Goods is due on the 30th day after receipt of the invoice for the Goods.
9.4. No payment shall be deemed to have been received until the Company has received cleared funds.
9.5. All payments payable to the Company under this Contract shall become due immediately upon termination of this Contract despite any other provision.
9.6. 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 Company to the Buyer.
9.7. The Company may appropriate any payment made by the Buyer to the Company to such of the Goods as the Company thinks fit despite any purported appropriation by the Buyer.
9.8. If the Buyer fails to make any payment under this Contract on the due date then (without prejudice to its other rights and remedies) the Company may charge the Buyer interest (both before and after judgement) on the amount unpaid at the annual rate of 4% above the LIBOR base rate from time to time until payment is made in full (a part of a month being treated as a full month for the purpose of calculating interest).
10.1. Where the Company is not the manufacturer of the Goods the Company will endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
10.2. The Company warrants that (subject to the other provisions of these terms and conditions) upon delivery the Goods will, and for a period of 1 month from the date of delivery, be of satisfactory quality within the meaning of the Sale of Goods Act 1979 as amended.
10.3. The Company shall not be liable for a breach of the warranty in condition 10.2 unless:
10.3.1. the Buyer gives written notice of the defect to the Company and, if the defect is as a result of damage in transit, to the carrier within 30 days of:
10.3.1.1. the date of delivery (where the defect would be apparent to the Buyer upon a reasonable inspection); or
10.3.1.2. the date when the Buyer knew or ought reasonably to have known of the defect (where the defect would not be apparent to the Buyer upon a reasonable inspection); and
10.3.2. the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company for the examination to take place there.
10.4. The Company shall not be liable for a breach of the warranty in condition 10.2 if:
10.4.1. the defect arises because the Buyer failed to follow the Company’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
10.4.2. the Buyer alters or repairs such Goods without the written consent of the Company; or
10.4.3. the defect in such Goods arises from any design defect in any drawing, design or specification supplied or approved by the Buyer.
10.5. If the Buyer makes a valid claim against the Company based on a defect in the quality of the Goods, the Company 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.
10.6. If the Company complies with condition 10.5 it shall have no further liability for a breach of the warranty in condition 10.2 in respect of the quality of such Goods.
10.7. Any Goods replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms and conditions for the unexpired portion of the 1 month period.
11. Limitation of liability
11.1. The following provisions and the provisions of condition 10 set out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
11.1.1. any breach of these terms and conditions; and
11.1.2. any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
11.2. 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 as amended) are excluded from the Contract.
11.3. Nothing in these terms and conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITIONS 11.4 AND 11.5
11.4. Subject to conditions 11.2 and 11.3:
11.4.1. The Company’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 £10,000; and
11.4.2. the Company 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 indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (whether caused by the negligence of the Company, its employees, agents or sub-contractors) which arise out of or in connection with the Contract.
11.4.3. The parties agree that this condition is reasonable and that £10,000 is based on the level, exclusions and limits of liability in this condition.
11.5. The Buyer shall indemnify the Company against all liability, actions, proceedings, costs, claims, damages or demands in any way connected with this Contract brought or threatened to be brought against the Company by any third party except to the extent the Company is liable to the Buyer in accordance with these terms and conditions.
12.1. 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 or makes an arrangement or composition with his 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.
12.2. The Contract will terminate immediately upon service of written notice of termination by the Company 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 Company 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.
12.3. The Company’s rights contained in condition 7 (but not the Buyer’s rights) shall continue beyond the discharge of the Buyer’s and the Company’s primary obligations under the Contract consequent upon its termination.
12.4. The termination of the Contract howsoever arising shall be without prejudice to the rights and duties of either the Buyer or the Company accrued prior to termination.
13.1. All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission:-
13.1.1. (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
13.1.2. (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Buyer.
13.2. Communications shall be deemed to have been received:-
13.2.1. if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
13.2.2. if delivered by hand, on the day of delivery;
13.2.3. if sent by facsimile transmission on a working day prior to 4:00 pm, at the time of transmission and otherwise on the next working day.
13.3. Communications addressed to the Company shall be marked for the attention of the Managing Director.
14.1. Time for performance of all obligations of the Buyer is of the essence.
14.2. Each right or remedy of the Company under this Contract is without prejudice to any other right or remedy of the Company 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 affected.
14.4. Failure by the Company 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 Company may assign, license or sub-contract all or any part of its rights or obligations under this Contract without the Buyer’s consent.
14.6. This Contract is personal to the Buyer who may not assign, license or sub-contract all or any of its rights or obligations under this Contract without the Company’s prior written consent.
14.7. 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.