Terms of Trading, W.Sitch & Company Limited
1. Terms of Trading
All goods and services supplied by W.Sitch & Company Limited ('the company') on the following terms and acceptance of goods and services from the company shall be conclusive evidence before any courts or arbitrator that these terms apply.
No persons in the employment or acting otherwise as agents of the Company, or purporting so to do, has the authority to accept orders or supply goods on any other terms or vary these terms in any way whatsoever unless otherwise provided in writing by a duly appointed officer of the company.
3. Previous Dealings
Previous dealings between the company and any customers shall not vary or replace these terms or be deemed in any circumstance whatsoever so to do.
4. Quotations, Prices and Orders
a. Quotations are not binding to the company until the company has accepted a written order or customer has either collected the goods or the goods have been delivered to the customer.
b. The company reserves the rights to revise quoted prices and changes in the event of:
i. Any change in the company's costs between the date of quotation and the date of dispatch;
ii. The company's quoted price being inaccurate owing to any accidental error or omission affecting the price or its calculation;
iii. Any additional or incorrect instructions being given by the customer.
c. No orders once accepted may be cancelled or amended without the company's written agreement.
d. A scheduled order (i.e. an order calling for delivery spread over a specified period) shall constitute unqualified authority to manufacture all goods or provide all services under the order and the customer shall be liable to pay for all such goods and services from the date of contract.
e. All prices quoted are ex-works unless stated otherwise.
f. The quotation is open for acceptance for 30 days.
g. Customers' goods are handled and stored at their own risk.
5. Collection & Delivery
a. The timings of collection and delivery shall not be of the essence and the company shall not be liable to any loss or damage whatsoever, or howsoever, out of failure to meet any period or date of delivery specified, in any quotation or otherwise.
b. The company may arrange for the collection or delivery of the goods in instalments unless otherwise agreed. When instalments are specified, each instalment shall constitute a separate contract and the failure of any one or more instalments shall not be deemed to be a repudiation of the contract.
c. Without prejudice the rights of the company for breach of contract if the customer fails to give the company instructions regarding the collection or delivery when so requested or refuses to accept delivery of the goods or fails to make collection, the company may charge the customer such loss or damage as may be suffered or incurred by the company by reason thereof.
d. The company reserves the right to levy storage or demurrage charges where goods are not collected within 30 days of being made available, or the period set out in writing in the contract and agreed as part of the terms of said contract. The company accepts no liability for any additional work arising as a result of goods being stored on the company's premises.
a. Deposits are non-refundable.
b. Payment terms are nett cash and amounts must be paid on completion of works, and prior to works leaving the premises. For account customers, other than export, payment must be made in no later than 30 days from the date of the company's invoice.
c. Should any account of a customer become overdue the company reserves the right to suspend performance of any of the company's obligations to such customer temporarily or indefinitely.
d. Packing charges, if any, shall be in accordance with the type of container supplied to the customer, as indicated on the invoice.
e. Interest at a rate of 4% above NatWest Bank PLC's base rate shall be charged on overdue accounts.
f. Payment will be in £ sterling unless otherwise agreed in writing.
g. In the event any third parties are employed to collect any outstanding monies owed by said business the customer agrees to pay reasonable collection costs, including but not only, legal and court fees, whether or not litigation has commenced, and all costs of litigation incurred.
Without prejudice to any available rights or remedy, the company may, if the customer is in default in meeting any payment due to the company (whether under the same contract or not) suspend further release of goods and/or performance of services so long as such default continues or, at its option, cancel any outstanding order or the undelivered balance thereof without any liability to the customer in respect of such suspension or cancellation, and the customer shall upon demand indemnify the company against any loss or damage as may be suffered or incurred by reason of such suspension or cancellation. The company reserves the right to levy a storage fee for any goods held on the premises for the duration of any period of that may arise from a suspension or cancellation.
a. All goods or services, including 'finishing' will be performed within reasonable manufacturing limits. If special accuracy is required the customer must specify in writing the maximum and minimum limits and a sample colour where appropriate. The company accepts no responsibility for the accuracy of information or drawings supplied by the customer.
b. Hanging assemblies carry a nominal loading only and the company accepts no liability arising either directly or indirectly from the use of them. Customers requiring a certificate of testing must request this in writing at the time of placing the order and pay the appropriate testing fee.
c. Glass being handmade means that there is variation both within and between each piece, and within and between the frames or associated metal works, the glass will need to be cut in and a reasonable, rather than a good or perfect fit should be expected.
9. Quantity Variations
A shortage or surplus not exceeding 5% (rounded to the nearest whole unit) of the quantity ordered will be considered the execution of the contract and the company shall not be liable for any further discrepancies unless written notice thereof is received within 7 days of the release date and the company is given reasonable opportunity of witnessing a recheck of the quantity before use of or sale.
10. Origination of Work
a. All sketches, patterns, moulds and originations of work remain the company's property whether or not a charge is made towards their cost.
b. Any master patterns, goods or property belonging to the customer which may be in the company's possession may, is held at the customers risk.
c. Any master patterns, goods or property belonging to the customer which may be in the company's possession may, at the company's option be sold by the company in extinction or part extinction of any monies owed by the customer to the company but the company undertakes to give the customer notice of the company's intention to effect such a sale.
d. No exclusivity is granted to any client in the supply of goods or performance of services.
e. The company reserves the right to continue to manufacture goods and/or perform services to subsequent customers that may arise from sketches, patterns moulds and origination of work belonging to the customer.
11. Customer Supplied Materials
Where materials or other property are supplied to the company by the customer or on the customer's behalf (whether owned by the customer or not) to be held by the company for the purpose of this contract the company accepts no responsibility for loss or damage to such material or property, howsoever or whensoever occurring nor for imperfect work caused by defects in, or the unsuitability of any materials or property so supplied.
12. Intellectual Property
a. The customer shall indemnify the company against all damages, penalties, costs and expenses:
i. To which the company may become liable as a result of work done in accordance with the customer's specifications and instructions, which involve the infringement of patents, registered designs, trademarks or copyright or
ii. Which are incurred by the company as a result of a master pattern supplied by the customer to the company being defective or containing a hallmark.
b. The customer shall pay the company a sum pertaining to 25% of the sale price, or 25% of the current price of any product created resulting from the copying, with or without modification, of any goods procured from the company.
a. The company acknowledges that before entering into an agreement for the purchase of any goods or services from the company the customer has expressly represented and warranted that the customer is not insolvent and has not committed any act of bankruptcy, or being a company with limited or unlimited liability, knows of no circumstances which would entitle any debenture holder or secured creditor to appoint a receiver, to petition for winding up of the company, or exercise any rights over or against the company's assets.
b. Goods the subject of any agreement by the company to sell, shall be at the risk of the customer as soon as they are made available by the company to the customer or the customer's order.
c. The goods shall remain the sole and absolute property of the company as legal and equitable owner until such a time as the customer shall have paid to the company the agreed price together with the full price of any other goods subject to any other contract with the company.
d. The customer acknowledges that they are in possession of goods solely as a bailee for the company until such time as the full price thereof is paid to the company together with the full price of any other goods subject to any other contract with the company.
e. Until such time as the customer becomes the owner of the goods they will store them on their premises separately from their goods or those of any other person and in a manner which makes them readily identifiable as the goods of the company.
f. The customer's rights to possession of the goods shall cease if they, not being a company, commit an available act of bankruptcy, or if they, being a company, do anything which would entitle a receiver to take possession of any assets or which would entitle any person to present a petition for winding-up. The company may for the purpose of recovering its goods enter upon any premises where they are stored or where they are reasonably though to be stored to repossess the same.
g. Subject to terms hereof, the customer is licensed by the company to agree to sell the company's goods, subject to the express condition that such an agreement to sell shall take place as their agents, save that the customer shall not hold himself out as such, or as bailees for the company, whether the customer sells on their own account or not, and that the entire proceeds thereof are held in trust for the company and are not mingles or paid into an overdrawn bank account, and shall be at all times identifiable as the company's monies.
h. If the customer has not received the proceeds of any such sale they will, if called upon to do so by the company, within 7 days assign to the company a right against the person or persons to whom they have supplied any product or chattel made from or with the company's goods.
i. Each of the above sub-clauses shall be deemed distinct and separate conditions and the validity or invalidity of any particular sub-clause shall not affect the validity or invalidity of the remaining sub-clauses.
In the event of being proved to the company's satisfaction that the goods supplied were defective the company will rectify, replace or give credit (the choice being that of the company) for goods but subject to the following conditions, the extent of the company's liability being restricted to the works carried out on the premises:
a. The defect or fault shall have become apparent within such period of time which shall not in any event exceed one month from the date of being made available as shall in all the circumstances be reasonable.
b. Immediate notice shall be given by the customer to the company.
c. The goods shall at any time have been used in the proper manner or for a purpose that the company was aware before being made available.
d. No attempt shall have been made by the Customer or any other person to repair or modify the goods.
e. The company shall have been given the opportunity to examine the goods
f. Goods delivered and alleged to be defective must be returned to the company carriage paid by the cheapest route, and in the case of
i. UK contracts within 7 days from the date when the defect became apparent or 5 weeks from the date that they were made available, whichever shall be the shorter period.
ii. Export contracts within 30 days from the date when the defect became apparent or 2 months from the date that they were made available, whichever shall be the shorter period.
a. All storage and demurrage charges incurred at the destination of any goods through delay by the customer in taking up the goods shall be met by the customer.
b. The company reserves the right to levy storage or demurrage charges where goods are not collected within 30 days of being made available, or the period set out in writing in the contract and agreed as part of the terms of said contract. The company accepts no liability for any additional work arising as a result of goods being stored on the company's premises.
c. In cases where goods are ready for export but cannot be shipped in accordance with a customer's instructions for a period of one month because of unavailability of shipping (either owing to the customer's failure to approve available ships) or because of government restrictions or regulations, which have intervened since the placing of the order, the company shall have the option to dispose of the goods elsewhere and cancel the contract in whole or part, or to remove the goods to a storage depot and charge the customer at cost, or store the goods on the premises and levy a storage fee.
d. Except in so far as the company may be liable in respect of defective goods the company shall be under no liability whatsoever (without prejudice to the generality of the foregoing any liability in tort or for consequential loss damage or injury of any kind) for any defect in failure of or use of or unsuitability for any purpose of the the goods or any part thereof howsoever caused; and all conditions warranties or other terms whether expressed or implied and whether statutory or otherwise which are inconsistent with the provisions of this condition and which are capable of lawful exclusion are hereby expressly excluded.
e. If any distress or execution shall be levied on the customer's property or assets, or if the customer shall become insolvent or make an offer to make arrangements, compositions with creditors or commit any act of bankruptcy, or if any petition or receiving order in bankruptcy is presented or made against the customer or if any customer is a limited company and any resolution or petition to wind up such company (other than for the purpose of amalgamation or reconstruction) shall be passed on or presented, or if a receiver of the company's undertaking, property or assets or any part thereof shall be appointed, then, without prejudice, to any claim, the company may have or exercise:
i. The company will have the right forthwith to determine the contract and upon written notice of such determination being posted to the customers last known address the contract shall be deemed to have been determined.
ii. There shall immediately upon the happening of such an event become due and payable by the customer to the company such sum as the company may reasonably calculate or estimate as the fair value of work and labour performed, materials purchased and expense occurred by the company under this contract to the relevant date.
16. Governing Law
The interpretation and performance of these conditions will be governed by the Law of England and the parties shall submit to the jurisdiction of the English Courts.