T
ERMS
& C
ONDITIONS
64
S MURRAY & CO
1. DEFINITIONS
1. "TheCompany" -means SMurray &Co Limited.
2. "TheCustomer" -means the customer of the company.
3. "TheContract" -means any contract for the sale of goods
by the company to the customer.
4. "Thegoods" -means goods of any description forming the
subject matter of this contract including, parts, components
and ingredients of anymaterials incorporated into the goods.
2. QUOTATIONS
Quotationsby the company unless otherwise stated in terms or
otherwise agreed by the company in writing shall be open for
acceptancewithin 30 days of the date of the quotation.
3. EXISTENCEOFCONTRACT
1. Nocontracts shall come intoexistenceuntil thecustomer's
order (whether placed pursuant to a quotation or
otherwise) is accepted by the earliest of:
(a) the company'swritten acceptance;
(b) delivery of the goods;
(c) delivery of the company's invoice.
2. These conditions shall be incorporated in the contract to
the exclusion of any terms and/or conditions stipulated or
referred to by the customer.
3. No variations or amendments of this contract or these
terms and conditions shall be binding on the company unless
confirmed by it inwriting.
4. The customer hereby agrees that no reliance will be
placed upon any written or oral statements or representation
made by the company its servants or agents which is not
enclosed or contained in the company's quotation or
acknowledgement of order or which is not reduced intowriting
by the customer and acknowledged inwriting by the company
before the contract comes into existence in accordance with
sub-paragraph 3.1 above.
4. PRICES
1. Prices are ex-works and exclude freight, insurance and
delivery charges; and further exclude Value Added Tax and all
other taxes or dutieswhatsoever.
2. The company shall have the right to increase its prices to
the customer to account for any alteration in the cost of mate-
rials, parts, or labour or to account for any changes in work or
delivery schedules or quantities, or to account for increases in
thecompany's costsof any kindarising for any reasonafter the
date of the contract.
3. The company shall not increase the price of any goods
which are the subject matter of an invoice already delivered by
the company to the customer.
5. PAYMENT
1.
All invoices are payable without discount of any kind in
pounds sterling on the last day of themonth following the date
on the company's invoices at the premises stated on the
invoice as being the company's premises.
2. In no circumstances whatsoever shall the customer be
entitled tomakeanydeductionor claimany set-off orwith-hold
payment on any invoice for any reason at all.
3. Time for payment shall be of the essence of the contract.
The customer may be required to pay to the company interest
onanyoverdueamount from thedates thepaymentwasdue to
that onwhich it ismade (whether before or after judgement) on
a daily basis at the rate of 4% per annum over the base rate
from time to timequotedbyNationalWestminsterBankPlcand
the customer shall reimburse to the company all costs and
expenses (including legal costs) incurred in thecollectionof any
overdue amount.
6. TITLE
1. Property in the goods shall remain with the company and
shall not pass to the customer (notwithstanding the earlier
passingof risk) until thepriceof thegoodshasbecomedueand
has been paid by the customer in full.
2. Until property passes to the customer upon payment for
the goods the customer shall hold the goods as bailee for the
company and shall store or mark them so that they can at all
timesbe identified as theproperty of the company.
3. The company shall be entitled at any time before property
passes to the customer to repossess all or any of the goods
and/or use or sell them (without any liability to the customer),
and so terminate the customer's right to use, sell or otherwise
deal with them as the company's bailees.
4. For thepurposes set out in sub-paragraph6.3 aboveor for
the purposes of determining what goods are held by the cus-
tomer and inspecting them; the company or its authorised
agentsmay at any time enter and remain upon any premises of
the customer.
5. The company shall be entitled at any time before property
passes to the customer whether or not payment for the goods
is due require the customer forthwith to return the goods to the
company (at the customer's expense) to any address the com-
panymay reasonably specify.
6. Until property passes the entire proceeds of sale of the
goods shall be held in trust for the company and shall not be
mixed with other monies or paid into any overdrawn bank
account and shall be at all times identifiable as the proceeds of
sale.
7. Thecompanyshall beentitled tomaintainanactionagainst
the customer for the price of the goods notwithstanding that
property in them has not passed to the customer.
7. DELIVERY; RISK; PERFORMANCE
1. Goods are delivered to the customer when the company
makes themavailable to thecustomer or anyagentsof thecus-
tomer or any carrier (who shall be the customer's agentwhoev-
er pays his charges) at the company's premises or other delivery
point agreed inwritingby the company.
2. Risk in the goods passes when they are delivered to the
customer as aforesaid.
3. The company may deliver goods by instalments in any
sequence.
4. No default or failure by the company in respect of any use
or more instalments shall vitiate the contract in respect of
goods already delivered to the customer, or yet to be delivered
to the customer and where the goods are delivered by instal-
ments each instalment shall be deemed to be the subject of a
separate contract.
5. The companymaydeliver and the customer shall accept in
satisfactionof thecontract a lesser quantity than thequantityof
goods ordered.
6. Any dates quotedby the company or specifiedby the cus-
tomer for the delivery of the goods are deemed to be approxi-
mate only and shall not form part of the contract and the cus-
tomer acknowledges that in the performance expected of the
companyno regardhasbeenpaid toanyquoteddeliverydates.
7. Time for delivery is not of the essence of the contract.
8. If the customer fails to take delivery of the goods or any
part of themon thedate they aremade available andor fails to
provide written instructions or any documents licences con-
sents or authorisations required to enable the goods to be
delivered the company shall be entitled to store or arrange for
the storageof thegoods, and the risk in thegoods shall pass to
the customer delivery shall bedeemed tohave takenplace and
the customer shall pay to the company all costs and expenses
including storage and insurance charges arising from its failure.
9. The company shall not be liable for any penalty loss injury
or damage or expense arising from any delay or failure in deliv-
ery or performance from any cause whatsoever nor shall any
such delay or failure entitle the customer to refuse to accept
any delivery or performance of or to repudiate or terminate the
contract.
8. CLAIMSNOTIFICATION
1. Any claim for non-delivery of any goods in the United
Kingdom shall be notified by the customer to the company
within 14 days of the date on the company's invoice.
2. Anyclaims that thegoodshavebeendelivereddamagedor
are not of the correct quantity or do not comply with the
description in the contract shall be notified by the customer to
the Company within seven days of their delivery or deemed
delivery.
3. Any alleged defect in the goods shall be notified by the
customer to theCompanywithinsevendaysof deliveryor in the
caseof anydefect which is not reasonably apparent on inspec-
tion within seven days of the defect coming to the customer's
attention.
4. Any claim under this conditionmust be inwriting andmust
contain full details of the claim including anydetails requiredby
theCompany to identify the goods.
5. The Company shall be afforded a reasonable opportunity
and facilities to investigate any claims under this condition and
the customer shall if so requested in writing by the Company
promptly return any goods the subject of any claim and any
packing securely packed and carriage paid to theCompany for
examination.
6. The Company shall have no liability with regard to any
claim in respect of which the customer has not complied with
the provisions of this condition.
9. SCOPEOFCONTRACT
1. Under no circumstances whatsoever shall the Company
have any liability of whatever kind for:
(a) any defects resulting fromwear and tear accident or improper
use or storage after delivery;
(b) any goodswhich have been altered after delivery;
(c) the suitability of any goods for any particular purpose or use
under specific conditionswhether or not those purposes or
conditionswere known or communicated to theCompany.
2. Under no circumstances whatsoever shall the Company
have any liability of whatever kind for any:
(a) descriptions, illustrations, specifications, figures as to perfor-
mance, drawings and particulars of weights and dimensions
submitted by theCompany contained in theCompany's cata-
logues, price lists or elsewhere since they aremerely intended
to project a general idea of the goods and not to form part of
the contract or be treated as representations;
(b) technical information recommendations, statements or advice
furnished by theCompany its servants or Agents;
(c) any variations in the quantities or dimensions of any goods or
changes in their specifications or substitution of anymaterials if the
variation or substitution does not materially affect the
characteristics of the goods and the substitutedmaterials are
of a quality equal or superior to those originally specified.
10. EXTENTOF LIABILITY
1. The Company shall have no liability to the customer (other
than liability for death or personal injury resulting from the
Company's negligence) for any loss or damage of any nature
arising from any breach of any express or implied warranty or
condition of the contract or any negligence breach of statutory
or other duty on the part of the Company or in any other way
out of or in connectionwith the performance or purported per-
formance of or failure to perform the contract except in accor-
dancewith this condition.
2. If thecustomer establishes that goodshavenot beendeliv-
ered or have been delivered damaged or are not of the correct
quantityor donot complywith their descriptionor aredefective,
the Company shall at its option replace with similar goods any
goods which are missing, lost or damaged or do not comply
with their description or are defective or allow the customer
credit for their invoice value or refund to the customer the
invoice price of any such goods.
3. If theCompany is liable inaccordancewith thiscondition in
respect of only some goods the contract shall remain in full
force and effect in respect of the other goods in the contract.
4. The Company shall not be liable in any circumstances
whatsoever for goodswhich are lost or damaged in transit and
all claims shall bemade against the carrier.
5. There are no circumstances in which the liability of the
Company to thecustomer under this condition shall exceed the
invoice value of the goods.
11. GENERAL
1. If the customer fails to make any payment or otherwise
defaults in any of its obligations under the contract or any other
contract or agreementwith theCompanyor becomes insolvent,
has a receiver appointedor iswound up (voluntarily or compul-
sorily) or the Company bona fide believes that any such event
may occur; then the Company may suspend or terminate the
supply of any goods and shall be entitled to forfeit anymonies
already paid.
2. The contract and its subject matter are confidential and
shall not be disclosed or used for any unauthorised purpose.
3. The contract cannot be cancelled without the written
agreement of theCompanyanduponpayment by thecustomer
to the Company of 25% of the total contract price, or such
other sum expressly agreed inwriting by theCompany.
4. The contract shall be governedby theEnglish Law and the
customer consents to the exclusive jurisdiction of the English
Courts in matters regarding the contract except to the extent
that the Company invokes the jurisdiction of the Courts of any
other country.
5. Any notice to be given under this contract shall be inwrit-
ing or sent by facsimile transmission or forwarded by recorded
delivery post to the receiving party at its business address or
last knownbusinessaddressandshall bedeemed tohavebeen
givenon thedateof the facsimile transmissionor on theday fol-
lowing that onwhich the noticewas posted.
12. FORCEMAJEURE
The Company shall not be liable for any failure in the perform-
anceof any of its obligations under the contract causedby fac-
tors outside its control.
13. EXPORTS
1. For the avoidance of doubt all the above terms and condi-
tions apply to orders from customers outside the United
Kingdom aswell as those fromwithin theUnitedKingdom.
2. The provisions of this condition apply to customers from
outside theUnitedKingdom in addition to the remaining condi-
tions but if any inconsistency arises between this condition and
any others, for customers from outside theUnitedKingdom the
provisions of this condition shall prevail.
3. Orders from customers outside the United Kingdommust
be covered by an irrevocable letter of credit to cover the pur-
chase price and any other additional costs and charges what-
soever, confirmed by a London clearing Bank unless other
arrangements have been made and agreed between the
Company and the customer inwriting.
4. The Company's prices do not include F.O.B. charges or
any delivery charges todocks, airports or otherwise to the cus-
tomer's order.
5. Any obligation on the Company to carry or arrange for the
carriage of any goods to any points outside the Company's
premises must be agreed with the Company in writing, will be
entirely at the customer's expense and will be invoiced to the
customer by theCompany separately and at cost price.
6. Insurance is only effected on the customer's specific
instructions and to the customer's specific requirements, noti-
fied to the Company in writing, and entirely at the customer's
expense. However, the Company is under no obligation to
accept any instructions to effect any Insurance cover.
7. The notification periods specified in clause 8 shall be
extended in each case by seven days for customers from out-
side theUnitedKingdom.
8. Unless otherwise agreed inwritingby theCompany before
the contract is made it is the responsibility of the customer to
makeprovision for thedeliveryof goodsoutside theCompany's
premises and toprovide all necessary instructions, documents,
licences, consents, authorisations, permissions and insurance
required for theacceptanceof thegoods from theCompanyon
the due date.
