Shelley Engineering Terms & Conditions
1. General
1.1 For the purposes of these terms and conditions (“Conditions”): 1.1.1 “Goods” means the goods which the Company is to supply to the Customer in accordance with these Conditions;
1.1.2 “Customer” means the individual or organisation who enters into a contract with the Company; and
1.1.3 “Company” means Shelley Engineering (Redhill) Limited which supplies Goods to the Customer.
1.2 These Conditions are the only terms upon which the Company offers and agrees to contract with the Customer. Any contract made between the Company and the Customer for the sale and purchase of the Goods shall incorporate and be subject to these Conditions which shall govern such contract to the exclusion of any other terms and conditions subject to which any offer is made or purported to be made by the Customer and in no case shall the Customer’s conditions of purchase apply to such contract.
1.3 Quotations and tenders shall be available for acceptance for a maximum period of 30 days from the date of thereof and may be withdrawn at anytime by the Company within such period.
1.4 Any quotation or tender given by the Company is an invitation to the Customer to make an offer only and shall not constitute a contract. No order placed by the Customer with the Company in pursuance of a quotation, tender or otherwise shall be binding on the Company unless and until it is accepted in writing by the Company or the Goods are despatched.
1.5 In the event that no quotation or tender is given by the Company and the Company has received an order from the Customer then provided that the Customer shall have notice of these Conditions, in such circumstances all Goods are sold subject to these Conditions.
1.6 Any contract made with the Company for the sale of Goods shall incorporate and be subject to these Conditions only and any representation or warranty, written or orally made or given prior to the contract is hereby expressly excluded.
1.7 All samples, brochures, specifications, drawings, catalogues, particulars, shapes, descriptions and illustrations, price lists and other advertising matter are intended only to present a general
idea of the Goods and form no part of the contract unless expressly agreed in writing.
1.8 The Customer shall be responsible to the Company for ensuring the accuracy of the details, specifications and terms of any order for Goods submitted by the Customer to the Company, and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform its obligations under these Conditions. The Company shall incur no liability resulting from inaccurate information being supplied by the Customer. The Customer shall take all appropriate steps to notify the Company in writing of any changes to the details, specifications and terms as soon as possible.
1.9 The Customer shall indemnify the Company in full forthwith on demand from and against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of any cancellation (whether directly or indirectly) or changes to the details, specifications and terms by the Customer of any order.
1.10 All rights and remedies expressly reserved by the Company in these Conditions are without prejudice to any other right or remedy available to the Company.
1.11 Where rights and decisions in these Conditions are to be exercised or made at the sole discretion or discretion of the Company then the Company shall be under no duty or obligation to justify or provide a reason to the Customer for the decision.
1.12 The Company’s agents or employees are not authorised to make any representations concerning the Goods unless confirmed by the an authorised person representing the Company in writing and in entering into a contract with the Company for the sale and purchase of Goods the Customer acknowledges and agrees that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
1.13 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 provisions of these Conditions and the remainder of the provision in question shall not be affected thereby and shall remain in full force and effect.
2. Delivery and Access
2.1 Time for delivery of any Goods is given as accurately as possible but is not guaranteed and the Customer shall have no right to damages or cancel the order for failure for any cause to meet any delivery time stated.
2.2 Where the Customer requests delivery to a specific site, the responsibility is on the Customer to ensure that the Goods have been delivered before incurring site costs.
2.3 The date for delivery of any Goods shall in every case be dependent upon receipt of all necessary information, final instructions or approvals from the Customer in writing.
2.4 The Customer acknowledges and accepts that changes in design specifications, approvals or quantities required may result in delay in production and / or delivery by the Company.
2.5 The Company will endeavour to comply with reasonable requests by the Customer for postponements 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. The Company shall not be responsible for any deterioration to the Goods or protective coatings in the event of storage.
2.6 Where the Company accepts an order for the supply of Goods to be called off by the Customer over a period then unless otherwise agreed by the Company in writing such call offs must be made so as to complete delivery of all Goods within 12 months from the date of the Customer’s original order.
2.7 The Customer is responsible in all cases for unloading the delivery vehicle and shall be responsible for all loss or damage to the Goods during the course of such unloading.
2.8 The Company shall have the right to make delivery by instalments and in that event each delivery shall stand as a separate contract and failure to make any instalment delivery shall not entitle the Customer to repudiate the whole contract.
2.9 Where delivery is made by the Company to the Customer’s premises the Customer will ensure the provision to the Company of full and adequate access to the point at which delivery is to take place and all other facilities and services necessary to enable the Company to deliver in accordance with the Customer’s requirements. The decision of the Company’s representative as to the nearest point of accessibility to the Customer’s works shall be accepted as final and shall be deemed to be the point of delivery. 2.10 The Customer will take all appropriate steps to ensure that a delivery note(s) is signed on receipt of the Goods and that a copy is provided to the Company.
2.11 The Company accepts no responsibility for damage of any kind caused by its transport to any access road or to the place of delivery but the making good of any damage to such transport by defective approaches to the place of delivery shall be charged to and paid for by the Customer.
2.12 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 and the Company reserves the right to charge the Customer for any packaging.
2.13 Time for any erection or installation is based on one visit to the site identified by the Customer, unless expressly stated by the Company to the contrary, and the Customer is solely responsible for ensuring that the site, at point of work is ready, clear and accessible for lorries and cranes. Scaffolding and builders equipment where required by the Company, is to be supplied and erected free of charge, unless otherwise agreed, by the Customer. 2.14 We reserve the right to levy an extra charge in connection with any deliveries into the London Low Emission Zone (or equivalent) and / or charges levied on our vehicles in connection with environmental and pollution levies.
3. Risk and Title Retention
3.1. Until the purchase price of the Goods comprised in this or any other contract between the Customer and the Company and all other indebtedness of the Customer to the Company shall have been paid or satisfied in full (if by cheque then only upon clearance):
3.1.1 the property in the Goods comprised in this contract remains vested in the Company (notwithstanding the delivery of the same and the passing of the risk therein) and the Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the Company’s property and if the Customer does so all moneys owing by the Customer to the Company will forthwith become due and payable without notice being required for the purpose;
3.1.2 the Customer shall store the Goods in such a way that they can be readily identified as being the Company’s property; and 3.1.3 the Customer shall on request inform the Company of the precise location of each item of the Goods identified where applicable by its serial number, by supplying the Company at its expense within seven days of its request with a written schedule of the said locations.
3.2 Until the property in the Goods passes to the Customer:
3.2.1 the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so immediately, the Company reserves the right to enter upon any premises where the Goods are stored and to repossess the Goods and to dismantle the same (without being liable for any damage caused by so doing);
3.2.2 the Customer shall not purport to be the owner of the
Goods and shall not show such Goods as stock in its accounts; 3.2.3 the Customer shall insure the Goods against theft or
any damage howsoever caused until their price has been paid or until sale whichever shall first occur and the Company shall be entitled to call for details of the insurance policy; and
3.2.4 if the Customer shall not insure the Goods or shall fail
to supply details of its insurance policy on demand to the Company the Customer shall reimburse the Company for the cost of any insurance which the Company may reasonably arrange in respect of any of the Goods during the whole or any part of the period from the date of its delivery of the Goods until the date of payment to it of their full purchase price.
3.3 Nothing in these Conditions shall:
3.3.1 entitle the Customer to return the Goods or to delay payment for the Goods; or
3.3.2 constitute or be deemed to have constituted the Customer as the Company’s agent otherwise than for the purpose of this Condition; or
3.3.3 render the Company liable to any third party for any unauthorised representation or warranty made or given by the Customer to such third party in relation to the Goods; or
3.3.4 prevent the Company from maintaining an action for the price not withstanding that the property in the Goods may not have passed to the Customer.
4. Cancellation
Cancellation will only be agreed to 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.
5. Price
5.1 Unless otherwise agreed, the price is exclusive of VAT and other taxes and the cost of carriage and is based on costs current at the date of order acknowledgment or the date of the Company’s quotation or tender if earlier.
5.2 The Company reserves the right at any time prior to delivery of the Goods to adjust the price to take account of any increase in the costs to it of materials, taxes, labour, overheads, third party costs or services or of any currency fluctuations which increase the costs to it of Goods imported into the United Kingdom.
5.3 The Customer is solely responsible for the costs associated with any variation to the original specification and design of any Goods quoted on that may be subsequently demanded by any competent Authority and agrees that such costs will be charged as an extra.
6. Terms of Payment
6.1 Unless agreed otherwise in writing by the Company the price shall be payable:
6.1.1. in the case of a Customer who is a credit account holder, on or before the 28th day (or first working day thereafter) of the calendar month following the month in which the Company invoices the Customer; and
6.1.2. in all other cases, on demand.
6.2 If at the date on which the Company is ready to deliver the Goods the Customer delays delivery for any reason, the Company may present invoices for full settlement within 7 days of that date.
6.4 Time for payment shall be of the essence.
6.5 In default of payment and without prejudice to any other rights or remedies the Company reserves the right to demand payment of all outstanding balances whether or not due.
6.6 Interest shall be charged on outstanding balances at the rate of 4% per annum above the Base Rate of Barclays Bank PLC in force at the time when payment was due.
6.7 The Customer shall not be entitled to withhold or set-off payment for Goods delivered for any reason whatsoever and the Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
6.8 In the case of a Customer who is a credit account holder, the Company shall be entitled in its sole discretion to suspend or terminate the Customer’s account if the Customer fails to make a payment when it becomes due or if the Company otherwise reasonably believes that the Customer has failed or will fail
to comply with the terms of the credit account.
6.9. The Customer shall indemnify the Company against any legal or other expense reasonably incurred by the Company in the collection of any sums outstanding from the Customer to the Company, including without limitation, legal costs and fees.
7. Guarantee
7.1. If the Customer is a limited company, limited liability partnership or a trust, any director or directors and any person who holds more than 25 per cent of the issued share capital of the Customer (if a limited company) any member of the Customer (if a limited liability partnership) and any trustee of the Customer (if a trust) agree (if more than one, jointly and severally) to guarantee the payment of all monies, debts and liabilities of any nature from time to time due or owing from or incurred by the Customer to the Company (the “Guaranteed Obligations”).
7.2. This guarantee is and shall at all times be a continuing security and shall cover the ultimate balance of all monies payable under the contract, irrespective of any intermediate payment or discharge in full or in part of the Guaranteed Obligations.
7.3. Regardless of whether a guarantor ceases to be a director, shareholder, member, trustee, employee or agent, or otherwise leaves the service of the Customer no guarantor shall be discharged or released from his or her obligations under this guarantee unless and until the Customer expressly confirms in writing that he or she is so discharged or released.
7.4. The Company may, at its sole discretion, conditionally or fully release or discharge any guarantor from his or her obligations under this guarantee or accept any composition from or make any other arrangements with any guarantor without releasing or discharging the other(s) or without prejudicing or affecting the Company’s rights and remedies against such other(s).
8. Credit
This contract shall be subject to the provision that if at any time thereafter the Company is advised of circumstances casting doubt on the Customer’s credit worthiness or satisfactory security for payment is not given on request, the Company may require payment of the whole or part of the purchase price from the Customer in advance and pending such payment the contract shall be suspended. In the event of such advance payment not being made within a reasonable period stipulated by the Company, the Company may cancel the Customer’s order without liability and the Customer shall be responsible for any resulting loss to the Company.
9. Quantities
Where Goods are ordered by reference to numerical quantities the Company reserves the right to under or over deliver the quantity ordered by plus or minus 10% in accordance with trade custom.
10. Shortages on Delivery
10.1 The Customer shall have no claim for shortages, which should be apparent on visual inspection at the time of delivery unless the shortages 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 the delivery.
10.2 The Customer shall have no claim for shortages capable of being apparent on subsequent visual inspection (not being shortages or defects falling within Condition 10.1 unless:
10.2.1 the Customer inspects the Goods and notifies the Company in writing before fixing or otherwise using the Goods or cutting or removing bands and in any event within three (3) working days of arrival at its premises or other agreed destination; and
10.2.2 the Company is given an opportunity to inspect the Goods and investigate any complaint as to shortage before any use is made of the Goods.
10.3 If a written notice is not received by the Company 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.
11. Warranty and Defects
11.1 The Customer shall lodge with the Company in writing within 7 days after delivery of the Goods any claims in respect of defects in the Goods (and for this purpose rust oxidation and discoloration shall be regarded as being a defect which is apparent on visual inspection at the time of delivery) which are reasonably capable of detection by careful examination. Defects which are not detectable by careful examination within that period shall be notified in writing by the Customer as soon as practicable and in any event no later than:
11.1.1 30 days after discovery of the defect; or
11.1.2 12 months after the date of delivery of the Goods, whichever occurs first.
11.2 The Company shall at is option repair or replace or refund or credit the purchase price of any Goods or part thereof in which under proper storage and use defects appear within the time limits set out in Condition 11.1 above which are caused by faulty material or workmanship.
11.3 This warranty does not cover faulty installation, misuse, alteration, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), normal wear and tear or accident, nor will the Company be liable for any other losses or consequential expenses incurred.
11.4 The Customer shall provide such information regarding the circumstances of the claim as would be reasonably required to assess the validity of the claim and if insufficient information is provided, the Company shall be entitled, within 7 working days of requesting in detail the additional information needed, and such information not having been received, to reject the claim.
11.5 Save as aforesaid and save in respect of death or personal injury resulting from the negligence of the Company its servants or agents, the Company shall not be liable for any claim or claims for direct or indirect consequential or incidental injury loss or damage made by the Customer against the Company whether in contract or tort (including negligence on the part of the Company its servants or agents) arising out of or in connection with any defect in the Goods or any act, omission, neglect or default (whether or not the same constitutes a fundamental breach of the contract between the Customer and the Company or breach of a fundamental term thereof) or the Company its servants or agents in the performance of the contract between the Customer and the Company.
11.6 The Customer accepts as reasonable and agrees that the Company’s total liability for any defective Goods, and otherwise under the contract between the Company and the Customer for the sale and purchase of the Goods shall not in any circumstances exceed 100% of the price payable to the Company for the Goods (excluding VAT). It is accepted by the Customer and the Company that in fixing the foregoing overall limit of the Company’s liability in this Condition 11.6 the Company and the Customer have 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 insurance cover, to meet any liability.
11.7 The Company shall not be liable to the Customer or be deemed to be in breach of these Conditions by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control.
11.8 Without prejudice to the generality of the foregoing, nothing herein contained shall operate to exclude any warranty or condition implied by statute.
13. Liability
13.1 Save where the Company is shown to have failed to exercise reasonable care in the manufacture and or supply of the Goods and such a failure results in death or personal injury the company shall not be liable in respect of claims arising by reason of death or personal injury.
13.2 Under no circumstances whatsoever shall the Company be liable for consequential loss (including removal or rectification work required in connection with installation of repaired or substitute Goods) loss or other indirect losses or for damage to property.
14. Copyright and Confidential Information
14.1 All drawings documents and other information supplied by the Company are supplied on the express understanding that copyright is reserved to the Company and that the Customer will not without the written consent of the Company either give away loan exhibit or sell any such drawings or extracts there from or copies thereof or use them in any way except in connection with the Goods in respect of which they are issued.
14.2 On written application of the Customer the Company will make available the copyright in such drawings or extracts on payment of fee to the Company, such fee to be agreed.
15. Customer’s Drawings and Specifications
15.1 The Customer shall be solely responsible for ensuring that all information advice and recommendations given to the Company either directly or indirectly by the Customer or by the Customer’s agents servants consultants or advisors 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.
15.2 The Customer must accept sole responsibility for any discrepancies which occur between the quantities or sizes of Goods agreed to be supplied by the Company and the quantities or sizes which are needed by the Customer in order to satisfy the particular purpose for which the Customer requires the Goods.
15.3 The Customer shall indemnify the Company from and against all actions claims costs and proceedings which arise due to the manufacture of Goods to the drawings or specification of the Customer where such drawings or specifications are at fault or where it is alleged that they involve an infringement of a patent copyright registered or design copyright or other exclusive right.
16. Insolvency
If the Customer shall become bankrupt or insolvent or compound with creditors or in event of resolution being passes or proceedings commenced for the liquidation of the Customer (other than a voluntary winding up for the purpose of reconstruction or amalgamation or if a Receiver or Manager is appointed of all or any part of its assets or undertaking or if the Customer (being and individual) shall die or if the Customer shall be in default of his obligations under this contract then the Company shall be entitled to cancel this 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 (without prejudice to any right or remedy accrued or accruing to the Company) and the price of all Goods and services rendered by the Company to the Customer whether under this contract or any other contract in force at the date hereof shall immediately become due and payable.
17. Force Majeure
Without prejudice to these Conditions the Company shall not be under any liability for any delay loss or damage caused wholly or part by act of God government restriction condition or control any laws rules or regulations of the country of origin of the Goods non arrival of imported Goods inability to obtain transport or loading facilities or by reason of any other 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.
18. Tools
18.1 Subject to condition 18.2 below and unless otherwise expressly agreed in writing tools shall remain the property of the Company notwithstanding that the Customer may have paid or be liable to pay part of the cost of them.
18.2 Where tools or any of them are loaned to the Company by the Customer they shall remain the property of the Customer and shall where reasonably practicable be clearly identified as such. The Company shall not be liable in respect of damage to or the destruction of such tools save where it is shown to have been neglected in its custody or use of them when its liability shall be limited to the repair or replacement of the tools so far as may be necessary for the purpose of the contract or any future contract with the Customer.
18.3 Neither the Customer nor the Company shall disclose to any third party any measurements dimensional or details or any other information of the tools owned by the other without previous consent in writing.
19. Assignment
The Customer shall not assign or transfer or purport to assign or transfer any of its rights and/or obligations under any contract between the Company and the Customer for the sale and purchase of Goods and/or the benefit of any such contract to any other person whomsoever.
20. Sub-Contracts
The Company reserves the right to sub contract the performance of any of its obligations under any contract between the Company and the Customer for the sale and purchase of Goods or any part of any such contract.
21. Data Protection
The Customer agrees to the Company collecting and using such details (including, without limitation, Personal Data as defined in the Data Protection Act 1998) as the Customer provides to the Company for such purposes as are necessary in the Company’s sole discretion for the Company to comply with its obligations under these Conditions. The Company may have to pass the Customer’s details (including, without limitation, Personal Data as defined in the Data Protection Act 1998) on to responsible third parties for the same purpose. The Company shall not be responsible for any breach of security or any act or omission of third parties who receive the Customer’s details (including, without limitation, Personal Data as defined in the Data Protection Act 1998).
22. Legal
The contract shall be governed and interpreted exclusively according to the Law of England and shall be subject to the jurisdiction of the English Courts only.