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Conditions of Sale
In these conditions, unless the context requires otherwise:
- 1.1 'Buyer' means the person who buys or agrees to buy the goods from the Seller;
- 1.2 'Conditions' means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
- 1.3 'Delivery Date' means the date notified by the Seller when the goods are to be delivered;
- 1.4 'Goods' means the goods (including any instalment of the goods or any parts for them) which the Buyer agrees to buy from the Seller;
- 1.5 'Price' means the price for the Goods excluding carriage, packing, insurance and VAT; and
- 1.6 'Seller' means Gooding Aluminium Limited (a private company registered in England with limited liability under company number 1446419) of 1 British Wharf, Landmann Way, London SE14 5RS.
- 1.7 'Contract' means the contract for the sale and purchase of the Goods
- 1.8 'Writing' includes telex, cable, e-mail, facsimile transmission and any comparable means of communication
2 Conditions applicable
- 2.1 These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document.
- 2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions. When ordering, the following sitework data sheets should be downloaded by visiting the Gooding Aluminium Limited website @ www.goodingalum.com, selecting Support Centre from the main menu and clicking Sitework Data Sheet icon and upon receipt be passed to the relevant personnel: Delivery and off loading, Site storage, Installation, Maintenance of Aluminium, Health and Safety. Relevant Fixing Instructions And Independent Test results data should also be downloaded for the appropriate items and passed to the relevant personnel.
- 2.3 A contract for the sale and purchase of the goods shall be made when an order number or similar authorisation has been given by the Seller to the Buyer either verbally or in writing.
- 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 Seller.
- 2.5 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.
- 2.6 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 the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
- 2.7 A quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or revise a quotation at any time prior to the Seller's acceptance of the Buyer's order.
3 Price and payment
- 3.1 The Price shall be the Seller's quoted price. The Price is exclusive of VAT which shall be due at the rate ruling on the date of the Seller's invoice.
- 3.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications of the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
- 3.3 Payment of the Price and VAT shall be due on presentation of the pro-forma invoice. A VAT invoice will be issued following receipt of payment in full.
- 3.4 If payment is not made on the due date, the Seller shall be entitled:
- 3.4.1 to charge interest on overdue proforma invoices which shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 2% above HSBC Bank plc's base rate from time to time in force and shall accrue at such a rate after as well as before any judgment;
- 3.4.2 not to make any delivery.
- 3.5 In the event that the Seller owes money to the Buyer under any contract or other arrangement entered into between the Seller and the Buyer the Seller shall be entitled to set off such sums owed by the Seller to the Buyer against any sums which the Buyer shall owe to the Seller pursuant to these Conditions of Sale.
- 3.6 Payment in full of the price and VAT shall remain due and payable notwithstanding any reduction requested by the Buyer in the quantity or value of the Goods or any cancellation by the Buyer of the order for the Goods, or delay in payment of more than 30 days from date of order.
4 The Goods
- 4.1 The quantity and description of the Goods shall be as set out in the Seller's quotation. The Seller supplies only prime materials. Goods are inspected before delivery in accordance with the Sellers quality control procedures.
- 4.2 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EU requirements.
5 Warranties and liability
- 5.1 The Seller warrants that the Goods supplied will at the time of delivery correspond to the description given by the Seller. Except where the Buyer is dealing as a consumer (as defined in the Unfair Contract Terms Act 1977 Section 12 as amended and/or the Unfair Terms in Consumer Contracts Regulations 1999 Regulation 3(1)17) all other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are excluded to the fullest extent permitted by law.
- 5.2 The above warranty is given by the Seller subject to the following conditions:
- 5.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
- 5.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller's written approval;
- 5.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the Price has not been paid;
- 5.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
- 5.3 If the Seller agrees that it is or is found to be liable under the provisions of clause 5.2 above, then the Seller's liability to the Buyer shall be limited, at the option of the Seller, to repairing or replacing the Goods or refunding the purchase price (or a proportionate part thereof ) for them.
- 5.4 Where a sample of the Goods have been shown and/or inspected by the Buyer:
- 5.4.1 the goods may have surface finishes that are subject to shade/colour variations. The Seller cannot guarantee that the goods will accurately match the sample of the goods. Samples are indicative only and are not guaranteed to match the finished item.
- 5.4.2 the dimensions of the goods are subject to variation due to fabrication and/or manufacturing tolerances. 5.4.3 the sale does not constitute a sale by sample.
- 5.5 Nothing in these Conditions is intended to exclude or limit the liability of the Seller to the Buyer for the following matters:-
- 5.5.1 death or personal injury caused by the Seller's negligence;
- 5.5.2 failure to give good title to the Goods.
Save for the above matters the Seller shall have no liability of any nature whatsoever to the Buyer whether for breach of contract, any act or omission (including negligence), breach of any statutory duty, breach of any warranty, condition or other term implied by law, misrepresentation (unless fraudulent) or in any other manner whatsoever. Under no circumstances shall the Seller be liable to the Buyer for any loss of profits, loss of contracts, loss of goodwill, administration and management expenses, or any consequential loss or damage of any nature even if any of these matters were reasonably foreseeable.
- 5.6 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control:
- 5.6.1 Act of God, explosion, flood, tempest, fire or accident;
- 5.6.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
- 5.6.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
- 5.6.4 import or export regulations or embargoes;
- 5.6.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
- 5.6.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
- 5.6.7 power failure or breakdown in machinery.
- 5.7 These Conditions do not create any right enforceable by any person not a party to it except that a person who is the permitted successor to or assignee of the Seller is deemed to have the benefit of all rights of the Seller.
6 Delivery of the Goods
- 6.1 The Seller shall deliver the Goods ex works on the Delivery Date unless the Seller agrees to deliver the Goods to the Buyer's address.
- 6.2 The cost of delivery shall be subject to the method of delivery and shall be payable in the same manner as the Price.
- 6.3 The Seller will use all reasonable endeavours to deliver the Goods within any time estimate shown on the Seller's acceptance of order form. The Buyer shall make all arrangements to take delivery of the Goods whenever they are tendered for delivery.
- 6.4 The Delivery Date is an estimate and time shall not be of the essence.
- 6.5 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 prejudice to any other right or remedy available to the Seller, the Seller may:
- 6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
- 6.5.2 sell the Goods at the best price reasonably obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the Price or charge the Buyer for any shortfall below the Price.
- 6.6 The Buyer shall examine the goods upon delivery and satisfy itself that they conform to the Contract.
7 Acceptance of the Goods
- 7.1 The Buyer shall be deemed to have accepted the Goods after delivery to the Buyer.
- 7.2 After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the contract.
- 7.3 Any Goods considered to be damaged or defective (together with their packaging materials) shall be retained by the Buyer intact as delivered for a period of twenty one days from the notification of the claim to the Seller (which must be within 24 hours of receipt), within which time the Seller or its agents shall have the right to investigate the complaint and examine the Goods and, if possible, to remedy the defect. Any breach of this condition will release the Seller from any liability for Goods which are alleged not to conform to the Contract.
- 7.4 If the Seller agrees with Buyer that the Goods are damaged or defective and that it is not possible to remedy any defect then the Seller may, at its sole option, replace the Goods or credit the Buyer accordingly.
8 Title and risk
- 8.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
- 8.1.1 in the case of Goods to be collected from the Seller's premises at the time when the Seller notified the Buyer that the Goods are available for collection; or
- 8.1.2 in the case of Goods to be delivered to the Buyer 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.
- 8.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Price.
- 8.3 Until such time as the property in the Goods passes to the Buyer the Seller shall be entitled to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, the Buyer irrevocably authorises the Seller and its agents and employees to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
9 Remedies of Buyer
- 9.1 Where the Buyer rejects any Goods then the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such Goods or the failure by the Seller to supply Goods which conform to the contract of sale.
- 9.2 Where the Buyer accepts or has been deemed to have accepted any Goods then the Seller shall have no liability whatever to the Buyer in respect of those Goods.
- 9.3 The Seller shall not be liable to the Buyer for late delivery or short delivery of the Goods.
- 9.a. Returns & Cancellation Policy
- 9.a.1 Online orders only: Where the Buyer is buying standard stock goods (for themselves rather than for a business) there is a right to cancel within 7 days of their contract with the Seller. The Buyer should arrange to return the Goods by carrier (at their own expense) with the original packing. The Goods must be received by and signed for by the Seller and be in undamaged condition. No cancellations or returns for customized Goods. Where the Buyer is purchasing on behalf of a business (rather than for themselves) the Seller is unable to accept the cancellation, return or exchange of Goods unless agreed in writing by the Seller.
- 9.a.2. Orders excluding online orders: The Seller is unable to accept the cancellation, return or exchange of Goods unless agreed in writing by the Seller.
10 Export Terms
- 10.1 In these Conditions "Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
- 10.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 10 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
- 10.3 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.
- 10.4 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller's premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
11 General Conditions of Sale
- 11.1 The Seller reserves the right to appoint a sub contractor to perform any of its obligations arising under the Contract.
- 11.2 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.
- 11.3 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
- 11.4 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.
- 11.5 The Contract shall be governed by the laws of England. In the event of any dispute or difference arising between the parties which cannot be resolved through negotiation, the parties shall attempt to resolve the same in accordance with the Guidelines for Conciliation and Mediation or the Guidelines for Supervised Settlement Procedure ("Mini Trial") of the Chartered Institute of Arbitrators. If such dispute or difference is not resolved by one of these procedures within 28 days of the parties entering into it, or if either party refuses to participate in it, the same shall be referred to a single arbitrator to be agreed upon by the parties pursuant to section 16(3) of the Arbitration Act 1996 ("the Act") or in default of agreement, to be appointed by the President or Vice President for the time being of the Chartered Institute of Arbitrators. In this clause 12.5, "dispute or difference" does not include a claim for the price of the Goods by the Seller from the Buyer. The Arbitration shall be regarded as commenced for the purposes set out in section 14(1) of the Act when one party sends to the other a notice to concur in the appointment of an Arbitrator. The seat of the arbitration shall be in London. The Arbitrator shall determine the dispute or difference in accordance with the Law of the Contract.
12 Proper law of contract
The Contract is subject to the law of England and Wales.