CERDIC FOUNDRIES LIMITED
STANDARD CONDITIONS OF SALE (2015)
(a) Any order based on this tender is subject to the following conditions. This tender is open for acceptance (unless previously withdrawn) for not more than 21 days from the date thereof unless otherwise stated. No contact shall arise until the Seller has sent to the Buyer written acknowledgement of the Buyer’s order.
(b) The order must be accompanied with sufficient information, drawings and patterns to enable the Seller to supply the castings.
(a) Unless the order is accompanied by sufficient information, drawings and patterns to enable work to proceed forthwith, the Seller is at liberty to amend prices quoted herein to cover any increase in costs during the period of delay caused by the lack of such details.
(b) Any subsequent alterations of the order by the Buyer in design, weight, quantities or specification and any suspension of work due to instructions or lack of instructions will involve adjustment of the agreed or quoted prices, if the costs are affected thereby.
(c) Prices quoted are for unmachined self-colour castings unless otherwise stated.
(a) Prices quoted are net. Accounts are due for payment in full and cleared funds not later than the end of the month following the month in which they are received. When deliveries are spread over a period, each consignment shall be invoiced when despatched and each month’s invoice shall be treated as a separate account and payable accordingly.
(b) Should the Buyer cancel, suspend or reduce a quantity requirement, including cancellation, suspension or reduction of “firm” schedules, then any work already in progress will be delivered and invoiced in accordance with the earlier instruction of the Buyer and shall be paid for by the Buyer.
(c) If and so far as work upon castings has been necessarily commenced in advance of “firm schedules” in order to provide, in accordance with a normal process time cycle, for the deliveries indicated by a “tentative schedule”, the Buyer shall be liable to accept delivery of those castings at the times and in the quantities so indicated and to pay therefore.
(d) If the Buyer fails to make any payment due to the Seller by the due date for payment, then without limitation of any other remedies available, the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above the base rate of the Bank of England plc from time to time. Such interest shall accrue on a daily basis from the due date until payment of the overdue amount, whether before or after judgment.
(e) All payments payable to the Seller under these conditions shall become immediately due and payable upon termination for any reason.
(a) Where the Buyer supplies patterns the quotations of the Seller assume that such patterns are in good condition, true to drawing and entirely suitable for the Seller’s methods of production and for the production of the castings in the quantities required. If the Seller deems it necessary to modify patterns in order for castings to be better produced, the costs will be charged to the Buyer provided that the Seller has notified the Buyer in advance.
(b) For mutual benefit, when new patterns or equipment are to be made, the Seller requests to be consulted.
(c) Replacement of and alterations or repairs to Buyers’ patterns, or equipment due to normal wear and tear shall be paid for by the Buyer.
(d) Where patterns are not supplied by the Buyer, only such patterns as are specially made and separately charged in full shall become the property of the Buyer when paid for. The Seller takes all reasonable care to protect Buyers’ patterns while they are on the Seller’s premises but does not accept liability for any loss, damage or expense arising from any cause whatsoever which does not directly and solely result from a failure by the Seller to exercise such reasonable skill and care, provided that the Seller shall be under no duty to exercise such reasonable care in respect of patterns in the Seller’s custody for which no castings have been ordered for a period of three years. The Buyer shall be responsible for the custody of his patterns.
(e) The Buyer shall be responsible for the custody of his patterns from which no castings have been ordered for a period of three years.
(f) Pattern equipment shall be held as a lien in respect of unpaid accounts.
Unless otherwise stated, all prices are quoted ex-works. Delivery shall be completed when the Buyer places the goods at the Buyer’s disposal.
(a) Goods collected by the Buyer are carried at no risk to the Seller, the Seller will not be held responsible for any loss or damages however caused.
(b) Any special delivery at the request of the Buyer will be charged extra.
(c) The Buyer will ensure he is capable of receiving goods ensuring adequate access is available. Any cost arising out of difficultly with delivery will be the responsibility of the Buyer.
Time for delivery is estimated as accurately as possible, but is subject to any delays or breakdowns beyond the control of the Seller and is not guaranteed. The period specified for delivery on the Seller’s quotation:
(a) is exclusive of any period in making, altering or adapting patterns or in any experimental work connected with the castings;
(b) shall commence only after the receipt of written instructions to proceed together with all necessary and satisfactory information, drawings, and (if to be supplied by the Buyer) patterns or equipment required by the Seller to commence work;
(c) shall (if a sample casting is to be submitted for Buyer’s approval) commence only from a date of receipt of written approval;
(d) Owing to the difficulty of producing exact quantities of castings the Seller reserves the right to deliver up to 5 per cent in excess of the quantities ordered unless special agreement has been made to the contrary.
(e) Delays in the delivery of an order shall not entitle the Buyer to either (i) refuse to take delivery of the order (ii) claim damages or (iii) terminate the contract.
(f) If the Buyer fails to take delivery of an order on the agreed date or within three business days of the Seller notifying the Buyer that the order is ready for collection then except where such failure or delay is caused by the Seller, the Seller shall store the goods until delivery takes place and charge the Buyer for all related costs and expenses (including insurance).
(g) The Seller shall not be liable to the Buyer for failure to deliver and/or for any loss suffered by the Buyer if it is unable to successfully produce the casting as a result of circumstances which were not known to the Seller or which could not be foreseen at the time the order was accepted.
7. Damage, Shortage or Loss
The Seller does not accept responsibility for any damage or loss in transit unless:
(a) The Seller agrees to deliver the goods other than ex works;
(b) Damage or shortage is notified in writing both to the Seller and to the carriers within 7 days of receipt of goods and the goods have been signed for as “not examined” and have been handled by the Buyer in accordance with carriers’ conditions, or
(c) Non-delivery (in the case of total loss) is notified both to the Seller and to the carriers within the carriers’ permitted period. If the Seller fails to deliver the goods its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the goods ordered.
Samples submitted will be payable by the Buyer unless returned to the Seller’s works, carriage paid, within one month from the date of despatch. In all instances where the Seller is working from a new pattern, an altered pattern, or a pattern fresh to the Seller’s foundry, the Seller may submit sample castings for approval before executing the bulk of the order, which will only be commenced on receipt of such approval in writing. Where small quantities only are required submission of samples will be made only if such is requested by the Buyer at the time of placing the order.
Unless otherwise stated, the cost of supplying, machining, or testing all test pieces required by the Buyer will be charged extra. When figures or particulars relating to physical or chemical properties are indicated, they are to be regarded as a general guide only, and constitute no guarantee from the Seller unless specified margins have been agreed at the time of placing the order.
10. Limitation of Liability
(a) Nothing in these conditions shall limit or exclude the Seller’s liability for:
(i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(ii) fraud or fraudulent misrepresentation; or
(iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
(b) Subject to clause 10 (a):
(i) the Seller shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
(a) loss of profit; or
(b) loss of goodwill; or
(c) loss of business; or
(d) loss of business opportunity; or
(e) loss of anticipated saving; or
(f) loss or corruption of data or information; or
(g) special, indirect or consequential damage
suffered by the Buyer that arises under or in connection with this agreement.
(ii) loss arising from castings found to be defective through fault or design or construction of patterns supplied by the Buyer;
(iii) the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed [£1,000,000].
(c) The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the contract.
(d) This clause 10 shall survive termination of the contract.
(a) The invoice value of any castings made by the Seller and proved to be defective in workmanship or materials will be credited to the Buyer, provided that the castings are returned to the Seller within 3 months from date of despatch. Any such agreed defective castings will be replaced (and re-invoiced at the price credited) or made serviceable for their original purpose free of charge.
(b) The Buyer shall make every effort to ascertain any possible defects as soon as possible after delivery of the castings, including any necessary test or inspection during or after machining. Immediately after discovery of any such defects or alleged defects, the Buyer shall notify the Seller in writing and give the Seller a reasonable opportunity to take prompt measures to prevent a repetition of the defect.
(c) Defective castings will not form the subject of any claim for labour, machining, costs or other expenditure thereon or for resultant loss or damage arising out of any such defect.
(d) Expenditure by the Buyer on the salvaging of defective castings may be a matter for agreement between Buyer and Seller, but in the absence of such agreement it shall not be chargeable to the Seller and any salvaging operation shall not be proceeded within any manner liable to prejudice the opportunity of the Seller to take the earliest possible steps to avoid a repetition of the defects in any further castings he may be making.
(e) No claim for free replacement or otherwise will be accepted in respect of any castings found to be defective through faults in the design or construction of patterns supplied by the Buyer.
12. Head metal
Any head cast integral with the casting to ensure soundness and delivered to the Buyer will be credited at the full casting rate if returned to the Seller within six weeks from date of despatch.
Unless otherwise specified, packing cases and packing materials will be charged extra.
Contracts for export will be subject to separate Conditions of Sale.
The Buyer shall insure in the joint names of the Buyer and the Seller all patterns supplied to the Seller by the Buyer for any purpose in connection with the contract against any loss, damage or expense arising from any cause whatsoever whilst in the Seller’s custody.
16. Retention of Title
(a) Title to the goods shall remain the property of the Seller until paid for in full.
(b) The ownership of castings supplied by the Seller shall remain with the Seller who reserve the right to dispose of the castings until payment in full for all the castings has been received by the Seller or until such times as the Buyer sells the material to its customers by way of bona-fide at full market value.
(c) If payment by the Buyer is overdue in whole or in part the Seller may (without prejudice to any of its other rights) recover or re-sell the castings or any of them and may enter upon the Buyer’s premises by its servants or agents for that purpose.
(d) Until title has passed to the Buyer, the Buyer must store the castings separately from all other goods held by it, not remove, deface or obscure any identifying mark or packaging on them, maintain them in satisfactory condition and keep them insured on the Seller’s behalf for their full price.
(e) We confirm that it is our practice to use casting supplies in rotation.
(f) If before title passes to the Buyer, the Buyer commences negotiations with its creditors with a view to rescheduling its debts, files a petition or passes a resolution for winding up, makes an application for the appointment of an administrator or a receiver is appointed over its assets or any event occurs in any jurisdiction which has a similar effect then (i) the Buyer’s right to resell the goods ceases immediately and (ii) the Seller may enter the premises of the Buyer to recover the goods.
17. Intellectual Property Rights
(a) In this clause “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
(b) The Buyer warrants that any patterns, drawings, or other information and equipment provided to the Seller and its use by the Seller shall not infringe the Intellectual Property Rights or other rights of any third party and the Buyer shall indemnify and keep the Seller indemnified against any loss, damages, costs, expenses or other claims howsoever arising from any such infringement.
(c) The Intellectual Property Rights in any patterns provided to the Buyer by the Seller shall be assigned to the Seller on payment for the goods in full.
(a) Without limiting its other rights or remedies, either party may terminate the contract with immediate effect by giving written notice to the other party if:
(i) the other party commits a material breach of any term of the contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
(ii) the other party suspends, or threatens to suspend, payment of its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(iii) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(iv) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(v) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(vi) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned above;
(vii) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
19. Jurisdiction and Governing Law
(a) These conditions and any dispute or claim arising out of them or their subject matter or formation shall be governed by and construed in accordance with the laws of England.
(b) Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these conditions or their subject matter or formation.
20. Force Majeure
(a) For the purposes of these conditions, Force Majeure Event means an event beyond the reasonable control of the Seller including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Seller or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) The Seller shall not be liable to the Buyer as a result of any delay or failure to perform its obligations under this contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents the Seller from performing the contract for more than four weeks, the Seller shall, without limiting its other rights or remedies, have the right to terminate this contract immediately by giving written notice to the Buyer.
(a) Entire Agreement: These conditions together with the Buyer’s order and the Seller’s acknowledgement of the Buyer’s order constitute the entire agreement between the parties. The Buyer acknowledges that if has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Seller which is not set out in those documents.
(b) Assignment and other dealings
(i) The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the contract and may subcontract or delegate in any manner any or all of its obligations under the contract to any third party or agent.
(ii) The Buyer shall not, without the prior written consent of the Seller, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the contract.
(c) Severance: If any provision or part-provision of the contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the contract.
(d) Waiver: A waiver of any right under the contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
(e) Third parties: A person who is not a party to the contract shall not have any rights to enforce its terms.
(f) Variation. Except as set out in these conditions, no variation of the contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Supplier.
I acknowledge receipt of Cerdic Foundries Terms and Conditions (2015)
Position ……………………………….. Authorised official of the Buyer