1 - Interpretation
- In these Terms:
“Buyer” means the person who places an order with the Seller;
“Contract” means the contract for the sale and purchase of the Goods in accordance with these Terms;
“Force Majeure Event” means an event or circumstance beyond a party's reasonable control.
“Goods” means the goods which the Seller is to supply in accordance with these Terms;
“Order” means the Buyer’s order for the Goods, as set out in the Buyer’s purchase order.
“Seller” means Talon Engineering Limited (registered under company number 1213668) whose registered office is at 44 Sea King Road, Lynx Trading Estate, Yeovil Somerset BA20 2NZ;
“Specification” means any specification for the Goods, including any related plans and drawings, that are agreed in writing by the Buyer and Seller;
“Terms” means the standard terms of sale set out in this document;
“Writing”, and any similar expression, includes facsimile transmission and electronic mail, but not text messages.
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
2 - Basis of the Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with these Terms which shall govern the Contract to the exclusion of any other terms the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Terms. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Seller that is inconsistent with these Terms.
2.4 Any samples, drawings, descriptive matter or advertising produced by the Seller and any descriptions, illustrations or photographs contained in the Seller's catalogues or brochures or website are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.5 A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 30 calendar days from its date of issue. The quantity, quality and description of the Goods and any specification for them shall be as set out in the Seller’s quotation.
2.6 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.7 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
3 - Orders and Specifications
3.1 No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller's authorised representative or the Goods are dispatched by the Seller, whichever is the earlier.
3.2 The Buyer shall be responsible for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The Seller is not responsible for the colour or difference in shades of colours its supplies which will vary from batch to batch.
3.4 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Buyer, the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Buyer's use of the Specification. This clause 3.4 shall survive termination of the Contract.
3.5 The Seller reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
3.6 No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4 - Price of the Goods
4.1 The price of the Goods shall be the Seller's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller's published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, the Seller's published export price list shall apply. All prices quoted are valid for 30 calendar days only or until earlier acceptance by the Buyer after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller may, by giving notice to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Seller's control (including but not limited to foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
4.3 Unless otherwise agreed in Writing, the price of the Goods:
(a) excludes amounts in respect of tax including value added tax (VAT), which the Buyer shall additionally be liable to pay to the Seller at the prevailing rate, subject to the receipt of a valid VAT or equivalent invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer in the case of delivery occurring anywhere other than the Seller’s premises.
5 - Terms of Payment
- 1 Unless otherwise agreed, the Buyer shall pay the price of the Goods and any additional charges applying (less any discount to which the Buyer is entitled but without any other deduction):
(a) for bespoke items, at the time of placing the order;
(b) for items which are not bespoke but for a Buyer without an account with the Seller, at the point that the Goods are ready for dispatch;
(c) for items for Buyers with an account with the Seller, within the time agreed on that account.
5.2 The terms of payment at clause 5.1 may be varied by the Seller, at its absolute discretion, on the giving of written notice to the Seller at any time.
5.3 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:
(a) cancel the Contract or suspend any further deliveries to the Buyer;
(b) appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer);
(c) set off any payment against any monies owed by the Seller to the Buyer; and
(d) charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 4 per cent per annum above Barclays Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.4 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
6 - Delivery & Export
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence to the Contract. The Goods may be delivered by the Seller in advance of the quoted delivery date on giving reasonable notice to the Buyer.
6.3 Without prejudice to clause 6.2, if the Seller should be found liable for any failure to deliver the Goods, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer of similar goods to replace those not delivered over the price of the Goods.
6.4 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without limiting any other right or remedy available to the Seller, the Seller may:
(a) after 3 calendar days store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
(b) after 10 calendar days sell the Goods and charge the Buyer for any shortfall below the price under the Contract and all reasonable storage and selling expenses.
6.5 Notwithstanding anything to the contrary in these Terms, should delivery to a delivery location other than the Seller’s premise be in anyway frustrated or delayed other than by the Seller, the Buyer will be liable for all costs, expenses, duties, or penalties howsoever arising directly or indirectly from the same.
6.6 The Buyer shall at the point of delivery check the Goods to ensure that they conform in number and as far as possible quality to the Order. The Seller will not be liable for any shortfall in the number of Goods delivered or for any defect identifiable on inspection unless notified to the Seller by the Buyer in writing within 3 working days of delivery.
6.7 Where the Goods are supplied for export from the United Kingdom, the Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and, for the payment of any duties on them.
7 - Risk and Title
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
(a) in the case of Goods to be delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
(b) in the case of Goods to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Title in the Goods shall not pass to the Buyer until the Seller has received payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as the title in the Goods passes to the Buyer, the Buyer shall:
(a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Seller immediately if it becomes subject to any of the events listed in clause 9.1;
(e) give the Seller such information relating to the Goods as the Seller may require from time to time; and
(f) be the Seller's fiduciary agent and bailee.
7.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 9.1, then, without limiting any other right or remedy the Seller may have the Seller may at any time:
(a) require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(b) if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
7.6 The Buyer shall not be entitled to pledge, create a lien over any ways charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.
8 - Quality
8.1 The Seller warrants that on delivery the Goods shall:
(a) conform in all material respects with their description and any applicable Specification to the extent set out under these Terms; and
(b) be free from material defects in design, material and workmanship.
8.2 Subject to clause 8.3 and the requirements of clause 6.6, if:
(a) the Buyer gives notice in writing to the Seller within 30 calendar days of delivery that some or all of the Goods do not comply with the warranty set out in clause 8.1;
(b) the Seller is given a reasonable opportunity to examine such Goods; and
(c) the Buyer (if asked to do so by the Seller) returns such Goods to the Seller's place of business at the Buyer’s cost and in accordance with the Seller’s reasonable instructions including a completed claims/returns note,
the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
8.3 The Seller shall not be liable for the Goods' failure to comply with the warranty set out in clause 8.1 in any of the following events:
(a) the Buyer makes any further use of such Goods after giving notice in accordance with clause 8.2;
(b) the defect arises because the Buyer failed to follow the Seller's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Seller following any drawing, design or Specification supplied by the Buyer;
(d) the Buyer alters or repairs such Goods without the written consent of the Seller;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
(f) the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
(g) the Goods are not returned in a resalable condition.
8.4 Except as provided in this clause 8, the Seller shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 8.1.
8.5 A minimum 15% restocking fee applies to all credits and may increase to as much as 90% depending on condition of goods and circumstances.
8.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
8.7 These Terms shall apply equally to any repaired or replacement Goods supplied by the Seller.
9 - Termination
9.1 Without limiting its other rights or remedies, the Seller may terminate this Contract with immediate effect by giving written notice to the Buyer if:
(a) the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 calendar days of that party being notified in writing to do so;
(b) the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Buyer's financial position deteriorates to such an extent that in the Seller's opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Seller if the Buyer becomes subject to any of the events listed in clause 9.1(a) to clause 9.1(d), or the Seller reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Seller's outstanding unpaid invoices and interest.
9.5 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
10 - Limitation of liability
10.1 The Seller shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract.
10.2 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 the price of the Goods save as expressly excluded by law.
11 - Force majeure
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 3 calendar months, the party not affected may terminate this Contract by giving 3 weeks written notice to the affected party.
12 - General
12.1 Assignment and other dealings.
(a) The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Buyer may not 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 without the prior written consent of the Seller.
12.3 Entire agreement.
(a) This Contract and the documents specifically referred to within it constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Contract.
No variation of this Contract by the Buyer shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise 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 the 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.
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.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.7(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or email, the same day as transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.8 Third party rights.
No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
12.9 Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.