Conditions of Sale
- “Buyer” means the person, firm, corporation, business or company from whom the Order is received;
- “Company” means Europa Engineering Limited whether trading under this name or otherwise;
- “Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Company;
- “Goods” means the articles which the Buyer agrees to buy from the Company;
- “Order” means the order placed by the Buyer for the supply of the Goods and/or the Services;
- “Price” means the price for the Goods excluding carriage, packing, insurance and VAT and/or the charges for the Services as defined in clause 3 below;
- “Services” means the services (if any) which the Company has agreed to supply to the Buyer;
2. Conditions Applicable
2.1 The Company’s quotations are not binding on the Company and a contract (“the contract”) will only come into being upon acceptance in writing by the Company of the Order.
2.2 The contract will be subject to these Conditions which shall apply to all contracts for the sale of Goods or provisions of the Services by the Company to the Buyer to the exclusion of all other terms and conditions including any terms and conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document.
2.3 All orders for Goods or Services shall be deemed to be an offer by the Buyer to purchase Goods or obtain Services pursuant to these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Company and in particular (but without limitation):
2.4.1 where the Buyer requires the Goods for a particular purpose the Company shall be deemed to have no notice of such purpose unless that purpose is agreed by the Buyer and Company in writing; and
2.4.2 the Company and the Buyer acknowledge that there is no usage or course of trading in existence which could affect the terms of the Contract in any way.
3. The Price and Payment
3.1 Subject to clause 3.2 below, the Company shall have the right to increase the Price in the event of any change in the price of raw materials of if the Goods to be supplied and/or Services to be supplied are different to those upon which the Company has quoted. In such circumstances, the price notified to the Buyer by the Company, shall be the Price and shall be binding to the Buyer.
3.2 The Price of the Goods and/or Services shall be the Company’s quoted price which shall be binding upon the Company provided that the Buyer shall accept the Company’s quotation within 30 days or where no such quotation shall have been given the Price of the Goods and/or Services shall be the price stipulated in the Company’s published price list current at the date of delivery of the goods or performance of the Services. The Company reserves the right to increase the Price of Goods and/or Services at any time after the expiry of the period specified in the relevant quotation if an Order has not been placed by the Buyer with the Company by the relevant date.
3.3 Payment of the Price and VAT shall be due on the last working day of the month following the end of the month in which the Goods are delivered of the Services performed. Time for payment shall be of the essence. The Price is exclusive of VAT which shall be due at the rate ruling on the date of VAT invoice.
3.4 Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 5% above National Westminster Bank plc’s base rate from time to time in force and shall accrue at such a rate after as well as before any judgement.
3.5 Prices are the Company’s ex-works prices and where the Company agrees to arrange for the Goods to be sent to the Buyer the Buyer shall be responsible for the costs of loading carriage and unloading.
3.6 The cost of pallets and returnable packaging will be due from the Buyer in addition to the Price if they are not returned to the Company in good condition within 60 days of the date of VAT invoice.
4. Warranties and Liability
4.1 The Goods shall be manufactured and supplied and the Services performed in accordance with the description contained in the Company’s specifications. The Company may from time to time make changes in the specification of the Goods or Services which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the Goods or the quality of the Services.
4.2 Except where express warranties are set out in these Conditions all warranties, conditions or terms of every kind whether implied by statute or common law or otherwise are hereby excluded to the fullest extent permitted by law provided that nothing in this Contract shall restrict or exclude liability for death or personal injury caused by the negligence of the Company or affect the statutory right of a Buyer dealing as a consumer.
4.3 The Company shall not be liable under any circumstances for consequential loss or damage whatsoever to the Buyer, its agents, officers, representatives, independent contractors, assigners, third parties or others whether caused by negligence or otherwise arising out of or in connection with the provision of any Goods or Services pursuant to the Contract and the total liability of the Company for any loss of the Buyer or otherwise in connection with this Contract shall not exceed the price.
4.4 The specifications and designs of the Goods and/or Services (including the copyright, design right or other intellectual property in them) shall as between the parties by the property of the Company. Where any designs or specifications have been supplied by the Buyer for manufacture or performance or Services by or to the Order of the Company then the Buyer warrants that the use of those designs or specifications for the manufacture processing, assembly or supply of the Goods or performance of the Services shall not infringe the rights of any third party.
4.5 The Buyer agrees to indemnify the Company against all losses, damages, injury, costs and expenses of whatever nature suffered by the Company to the extent that the same are caused by or relate to:
4.5.1 designs, drawings or specifications given to the Company by the Buyer in respect of Goods and/or Services performed produced by the Company for the Buyer; or
4.5.2 defective materials or products supplied by the Buyer to the Company and incorporated by the Company in Goods produced by the Company for the Buyer; or
4.5.3 the improper incorporation, assembly, use, processing, storage or handling of Goods by the Buyer.
4.6 Without prejudice to the other provisions of this clause 4, the Company may at its sole discretion elect to replace any Goods found to be defective under Clause 4 if such goods are returned to the Company within 3 days of the date of delivery provided that any such replacement Goods shall be accepted by the Buyer in full and final settlement of any claims it may have against the Company relating to such defective goods.
5.1 Stipulated dates for delivery or periods for completion of any design, the supply of Goods, the provision of Services and/or the completion of any works, are an approximate estimate only and time shall not be of the essence.
5.2 Subject to clause 5.1 above, the Goods shall be delivered by the Company at or despatched for delivery to, and the Services shall be performed at the place or places and in a manner as far as is possible as specified in the Order or as otherwise agreed.
5.3 Unless otherwise specified in the Order the Company shall be deemed to have made a due delivery of the Goods if the Goods are collected by or on behalf of the Buyer or delivered to or collected by a carrier nominated by the Buyer and such delivery shall be deemed to have taken place at the moment when the Goods are received into the possession of the Buyer, his servant, agent, representative or such carrier.
5.4 Any claim for damage or partial loss of the Goods in transit must be submitted in writing to both the carrier and the Company within three days of delivery and in the case of non-delivery of the whole consignment claims must be submitted in writing to both the carrier and the Company within seven days of receipt of the Buyer (or the Buyer’s agent) of notification of despatch of the goods. In the absence of claims within the terms mentioned above the Goods shall be deemed to have been delivered in accordance with the Contract.
5.5 If for any reason the Buyer is unable to accept delivery of the Goods at the time stated for delivery or where no date for delivery has been agreed when the Buyer has been notified that the goods are due and ready for delivery the Company shall at its discretion and without prejudice to its rights hereunder if its storage facilities permit, store the Goods until their actual delivery and the Buyer shall pay to the Company on the actual delivery of the said Goods in addition to any sum due under clause 3 hereof such sum represents the cost (including insurance) and the cost or any abortive deliveries of its so doing.
5.6 No delay in delivery or performance shall entitle the Buyer to repudiate or cancel the Contract or any delivery or performance thereunder.
5.7 The Company may deliver the Goods or perform the Services by separate installments and each separate installment shall be invoiced and paid for in accordance with the provisions of the Contract. The failure of the Buyer to pay for any one or more of the said installments on the due date shall entitle the Company (at its sole option) without notice to suspend further deliveries of the Goods or performance of the Services pending payment and/or to treat the Contract as repudiated by the Buyer.
5.8 The Company shall not be liable for any delays in the delivery of Goods or the supply of Services, nor shall the Company be liable if it is prevented from delivering Goods or supplying Services or executing any work for the causes beyond its control. Such causes may include but without limitation, act of god, force majeure war, hostilities, legislation government order or direction, strike, labour disturbances, fire, accident, breakdown of machinery, lack of labour or materials, or disease. This right exists without prejudice to the Company’s rights to recover payment for Goods and or Services and already delivered or provided or work already done.
6.1 The Buyer shall inspect the Goods supplied under this Contract immediately on the delivery thereof and in the case of any allegation of disconformity of the Goods with the Order within 3 days from such delivery give notice in writing to the Company or any matter or thing by reason where of it alleges that the Goods are not in accordance with the Contract and/or whether it rejects them.
6.2 If the Buyer fails to give notice that it rejects the Goods as provided in clause 6.1 the Buyer shall be deemed to have accepted the Goods and the Goods shall be deemed to be in all respects in accordance with the Contract.
6.3 If the Buyer gives notice that it rejects the Goods and such rejection afterwards becomes ineffectual by reason of the Buyer dealing with the Goods as owner or by reason of any other conduct on the part of the Buyer inconsistent with such rejection the Buyer shall be bound to pay the Price in full and shall have no claim for damages or compensation by reason of any disconformity of the Goods with the Contract.
6.4 If the Buyer rejects the Goods under clause 6.1 hereof the Company may elect to supply other Goods complying with the Order to the Company within 14 days of the date of the notice of rejection and if those Goods are not properly rejected by the Buyer the Company shall be deemed to have complied with its obligations under the Contract and no claim by the Buyer’s rejection of the original Goods shall lie against the Company.
7. Retention of Title
7.1 The Goods shall be at the Buyer’s risk as from delivery.
7.2 In spite of delivery having been made full legal equitable and beneficial title and interest in all Goods shall not pass from the Company until payment in full has been received by the Company.
7.2.1 for the Goods;
7.2.2 for any other goods supplied to the Buyer by the Company; and
7.2.3 of any other monies due from the Buyer to the Company on any account whatsoever.
7.3 Until legal and beneficial title in the Goods passed to the Buyer in accordance with clause 7.2 the Buyer shall:
7.3.1 hold the Goods and each of them on a fiduciary basis as bailee for the Company; and
7.3.2 store the Goods (at no cost to the Company) separately from all other goods in its possession and readily identifiable as the Company’s property.
7.4 Notwithstanding the provisions of clause 7.2 the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at full market value for the account of the Company. Any such sale or dealing shall be a sale or use of the Company’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings. Until legal and beneficial title in the Goods passes from the Company the entire proceeds of sale or otherwise (including but not limited to insurance proceeds ) of the Goods shall be held in trust for the Company and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times be identified as the Company’s money.
7.5 In the event that any proceeds paid to the Company pursuant to clause 7.4 above exceeds the sums due to the Company the Company shall repay on request an amount equivalent to such excess to the Buyer less:
7.5.1 any further indebtedness which may subsequently have become due and owing to the Company by and from the Buyer; and
7.5.2 any sums which might become due in respect of any Goods ordered but for which payment has not become due.
7.6 At any time prior to legal and beneficial title in Goods passing to the Buyer the Company may (without prejudice to any other of its rights):
7.6.1 require delivery up to it of all or any part of the Goods;
7.6.2 retake possession of all or any part of the Goods and enter any premises for that purpose (or authorise others to do so) which the Buyer hereby authorises;
7.6.3 terminate the Buyer’s authority to resell or use the Goods forthwith by written notice to the Buyer which authority shall automatically terminate (without notice) upon any insolvency of the Buyer or it going in to liquidation (as defined in the Insolvency Act 1986) or it having a receiver or similar appointed or calling a meeting or its creditors or any execution or distress being levied on goods in its possession.
7.7 The Buyer shall insure and keep insured the Goods to the full Price against “all risks” to the reasonable satisfaction of the Company until the date that legal and beneficial title in the Goods passes from the Company, and shall whenever requested by the Company produce a copy of the policy of insurance. Without prejudice to the other rights of the Company, if the Buyer fails to do so all sums whatever owing by the Buyer to the Company shall forthwith become due and payable.
7.8 The Company may at any time appropriate sums received from the Buyer as it thinks fit notwithstanding any purported appropriation by the Buyer.
7.9 The Buyer shall promptly deliver the prescribed particulars of the Contract to the Registrar in accordance with the Companies Act 1985 Part II as amended. Without prejudice to the other rights of the Company, if the Buyer fails to do so all sums whatever owing by the Buyer to the Company shall forthwith become due and payable.
8.1 This clause applies if:
8.1.1 The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being individual or firm) becomes bankrupt or (being a company) goes in to liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
8.1.2 an encumbrancer takes possession of, or a receiver is appointed to, any of the property or assets of the Buyer; or
8.1.3 the Buyer ceases, or threatens to cease, to carry on business or;
8.1.4 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
8.2 If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to determine the Contract or suspend any further deliveries or performance under the Contract without any liability to the Company, and if the Goods have been delivered or the Services performed but not paid for the Price shall become immediately due and payable notwithstanding any previous agreement to the contrary.
9.1 All headings are for case of reference only and shall not affect the construction of this Contract.
9.2 Any provisions of this Contract which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable separate and distinct and shall not affect any other provision on this Contract.
9.3 No waiver or forbearance by the Company (whether express or implied) in enforcing any of its rights under this Contract shall prejudice its rights to do so in the future.
9.4 The Company may license or sub-contract all or any part of its rights and obligations under this Contract without the Buyer’s consent.
9.5 The Company shall not be liable for any default due to any act of God, war, strike, lock-out, industrial action, fire, flood, drought, tempest or other event beyond the reasonable control of the Company.
9.6 The Contract shall be governed by English Law and all disputes arising out of the Contract shall be subject to the exclusive jurisdiction of the Courts of England and Wales.
9.7 Where the Company contracts with the Buyer for the supply of steelwork fabrication, the Company’s Tendering Terms and Conditions for Steelwork Fabrication shall be deemed to be incorporated into the said contract in addition but not exclusive to these Conditions. In the event of any conflict between these Conditions and the Tendering Terms and Conditions for Steelwork Fabrication, these Conditions shall apply save in relation to the provisions concerning payment terms. The payment provisions as set out in Tendering Terms and Conditions for Steelwork Fabrication shall apply when the Company is concerned with the fabrication of steelwork.
Conditions of Purchase
1.1 In these Conditions:
Buyer means Europa Engineering Limited
Conditions means the terms and conditions of purchase set out in this document and any special terms and conditions agreed in writing by the Buyer
Contract means the contract for the sale and purchase of the Goods and the supply and acquisition of the Services
Delivery Address means the address stated on the Order
Goods means the articles which the Buyer agrees to buy from the Seller
Order means the order placed by the Buyer for the supply of the Goods and/or Services
Price means the price of the Goods and/or the charge for the Services
Seller means the seller of the Goods or provider of the Services so described in the Order
Services means the services (if any) described in the Order
Specification includes any plans, drawings, data or other information relating to the Goods or Services
1.2 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or 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 Purchase
2.1 The Order constitutes an offer by the Buyer to purchase the Goods and/or acquire the Services to these Conditions.
2.2 The Conditions shall apply to the Contract to the exclusion of any other terms and conditions on which any quotation had given to the Buyer or subject to which the Order is accepted or purported to be accepted by the Seller.
2.3 Despatch or delivery of the Goods or performance of the Services by the Seller to the Buyer shall be deemed conclusive evidence of the Seller’s acceptance of these Conditions.
2.4 No variation to the Order or these Conditions shall be binding unless agreed in writing by the Buyer.
3.1 The quantity, quality and description of the Goods and the Services shall, subject as provided in these Conditions, be as specified in the Order and/or in any applicable Specification supplied by the Buyer to the Seller or agreed in writing by the Buyer.
3.2 Any specifications supplied by the Buyer to the Seller, or specifically produced by the Seller for the Buyer, in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Specification, shall be the exclusive property of the Buyer. The Seller shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Seller, or as required for the purpose of the Contract.
3.3 The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods and the performance of the Services.
3.4 The Seller shall not unreasonably refuse any request by the Buyer to inspect and test the Goods during manufacture, processing or storage at the premises of the Seller or any third party prior to despatch, and the Seller shall provide the Buyer with all facilities reasonably required for inspection and testing.
3.5 If as a result of inspection or testing the Buyer is not satisfied that the Goods will comply in all respects with the Contract, and the Buyer so informs the Seller within 7 days of inspection or testing, the Seller shall take such steps as are necessary to ensure compliance.
3.6 The Goods shall be marked in accordance with the Buyer’s instructions and any applicable regulations or requirements of the carrier, and properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.
4. Price of the Goods and Services
4.1 The price of the Goods and Services shall be as stated in the Order and, unless otherwise so stated, shall be:
4.1.1 exclusive of any applicable value added tax (which shall be payable by the Buyer subject to a receipt of a VAT invoice) and
4.1.2 inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the Delivery Address and any duties, imposts or levies other than value added tax.
4.2 No increase in the Price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Buyer in writing.
4.3 The Buyer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller, whether or not shown on its own terms and conditions of sale.
5. Terms of Payment
5.1 The Seller shall be entitled to invoice the Buyer on or at any time after the delivery of the Goods or performance of the Services, as the case may be, and each invoice shall quote the number of the Order.
5.2 Unless otherwise stated in the Order, the Buyer shall pay the Price of the Goods and the Services within 60 days after the end of the month of receipt by the Buyer of a proper invoice or, if later, after acceptance of the Goods or Services in question by the Buyer.
5.3 The Buyer shall be entitled to set off against the Price (including any applicable VAT payable) any sums owed to the Buyer by the Seller whether under the application contract of sale or otherwise.
6.1 The Goods shall be delivered to, and the Services shall be performed at the Delivery Address on the date or within the period stated in the Order, in either case during the Buyer’s usual business hours.
6.2 Where the date of delivery of the Goods or of performance of the Services is to be specified after the placing of Order, the Seller shall give the Buyer reasonable notice of the specified date.
6.3 The time of delivery of the Goods and of performance of the Services is of the essence of the Contract.
6.4 A packing notice quoting the number of the Order must accompany each delivery or consignment of the Goods and must be displayed prominently.
6.5 If the Goods are to be delivered, or the Services are to be performed, by instalments, the Contract will be treated as a single contract and not severable.
6.6 The Buyer shall be entitled to reject any Goods delivered which are not in accordance with the Contract, and shall not be deemed to have accepted any Goods until the Buyer has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent.
6.7 The Seller shall supply the Buyer in good time with any instructions or other information required to enable the Buyer to accept delivery of the Goods and performance of the Services.
6.8 The Buyer shall not be obliged to return to the Seller any packaging or packing materials for the Goods, whether or not any Goods are accepted by the Buyer.
6.9 If the Goods are not delivered or the Services are not performed on the due date then, without prejudice to any other remedy, the Buyer shall be entitled to deduct from the Price or (if the Buyer has paid the Price) to claim from the Seller by way of liquidated damage for delay 10 per cent of the Price for every week’s delay, up to a maximum of 100 per cent.
7. Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery to the Buyer in accordance with the Contract.
7.2 The Property in the Goods shall pass to the Buyer upon delivery, unless payment for the Goods is made prior to delivery, when it shall pass to the Buyer once payment has been made and the Goods have been appropriated to the Contract.
8. Warranties and Liability
8.1 The Seller warrants to the Buyer that the Goods:
8.1.1 will be of merchantable quality and fit for any purpose held out by the Seller or make known to the Seller in writing at the time the Order is placed;
8.1.2 will be free from defects in design, material and workmanship;
8.1.3 will correspond with any relevant Specifications or sample; and
8.1.4 will comply with all statutory requirements and regulations relating to the sale of the Goods.
8.2 The Seller warrants to the Buyer that the Services will be performed by appropriately qualified and trained personnel, with due care and diligence and to such high standard of quality as it is reasonable for the Buyer to expect in all the circumstances.
8.3 Without prejudice to any other remedy, if any Goods or Services are not supplied or performed in accordance with the Contract, then the Buyer shall be entitled:
8.3.1 to require the Seller to repair the Goods or to supply replacement Goods or Services in accordance with the Contract within 7 days; or
8.3.2 at the Buyer’s sole option, and whether or not the Buyer has previously required the Seller to repair the Goods or to supply any replacement Goods or Services, to treat the Contract as discharged by the Seller’s breach and require the repayment of any part of the Price which has been paid.
8.4 The Seller shall indemnify the Buyer in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with:
8.4.1 breach of any warranty given by the Seller in relation to the Goods or the Services;
8.4.2 any claim that the Goods infringe, or their importation, use or resale, infringes, the patent, copyright, design right, trade mark or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any Specification supplied by the Buyer.
8.4.3 any liability under the Consumer Protection Act 1987 in respect of the Goods;
8.4.4 any act or omission of the Seller or its employees, agents or sub-contractors in supplying, delivering and installing the Goods; and
8.4.5 any act or omission of any of the Seller’s personnel in connection with the performance of the Services.
9.1 The Buyer may cancel the Contract at any time before all the Goods are delivered or the Services performed by giving written notice and on giving such notice.
9.1.1 the Seller shall cease to be bound to deliver or perform and the Buyer shall cease to be bound to receive delivery or accept performance of any further Goods or Services;
9.1.2 the Buyer shall cease to be bound to pay that part of the Price which relates to Goods which have been delivered or Services which have not been performed.
9.1.3 the Buyer shall not be liable for any loss or damage whatever arising from such cancellation.
9.2 The Buyer shall be entitled to terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:
9.2.1 the Seller makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
9.2.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Seller; or
9.2.3 the Seller ceases, or threatens to cease, to carry on business; or
9.2.4 the Buyer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller accordingly.
10.1 Neither party shall be liable for any default due to any act of God, war, strike, lockout, industrial actions, fire, flood, drought, tempest, or other event beyond the reasonable control of either party.
10.2 The Order is personal to the Seller and the Seller shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Contract.
10.3 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.
10.4 No waiver by the Buyer of any breach of the Contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.5 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.
10.6 The Contract shall be governed by the Laws of England.