These terms apply to and are incorporated in each and every Order accepted or Contract for the supply of Goods and/or materials and/or services (hereinafter called ‘Goods’) by Portec Rail Products (UK) Ltd (hereinafter called ‘the Company’).
There shall not be any variation or alteration or modification or waiver of all or any of these terms unless set out in writing and signed by a person duly authorised by the Company.
Where the Customer submits to the Company the Customer’s own form of Order with the Customer’s terms and conditions of Order, such terms and conditions are not accepted by the Company and are not incorporated in the Contract for the supply of Goods by the Company.
Orders and contracts are only accepted on these terms and conditions, irrespective of any terms or conditions printed on Customer order forms unless previously agreed and accepted writing by the Company.
3. Contract Price
Prices quoted by the Company are based on current costs/manufacturers prices are subject to increase at any time between the date of the order and the date of the Company’s acceptance. All prices are subject to confirmation by the Company at the time the order is accepted. All prices are exclusive of VAT and VAT shall be paid thereon.
4. Packing and Carriage Charges
These are additional to the Contract price and will be charged to and will be paid by the Customer cost unless otherwise stated.
Terms of payment are strictly 30 days from the invoice date, unless otherwise specifically agreed in writing by the Company. Should payment not be made as and when it becomes due, the Customer shall pay interest at the rate of 8% per annum on the sum due from the date of the Companies invoice.
6. Retention of Title
a) The property in the Goods remains vested in the Company and shall not pass to the Customer until the Customer shall have made payment in full of all sums due to the Company under any contract between the Company and the Customer.
b) Sub-Clause a) above shall not be affected by any alteration or addition of the Goods.
c) Until the property in the Goods shall have passed to the Customer the Company shall be at liberty at any time to re-take possession thereof and for that purpose to enter upon the premises of the Customer.
d) The Customer shall not resell or otherwise dispose of or mix with other Goods or otherwise loose the identity of the Goods prior to payment being made pursuant to sub-clause a) and prior to the passing of the property therein to the Customer. If in breach of this condition the Customer purport to sell or otherwise dispose of the
Goods the Customer shall hold the proceeds of any such purported sale or disposition on trust for the Company. This shall be without prejudice to any other rights and remedies vested in the Company as a result of such breach.
e) Not withstanding the foregoing, the Goods shall be at the risk of the Customer from the time of delivery to the Customer’s premises or other premises nominated by the Customer and shall be stored by the Customer in a proper and suitable manner so that no damage shall be caused to the Goods.
f) Until such time as the property in the Goods has passed to the Customer, the Customer shall keep the Goods separate and apart from other items of similar natures that they may be easily identifiable in the event of the Company requiring to re-take possession.
g) Until such time as in the property in the Goods has passed to the Customer, the Customer irrevocably authorises the Company, it’s servants, and agents to enter upon the premises where the Goods are stored and to re-take possession of them in the event of:
i) the levying of any distress or execution upon any of the assets of the Customer or
ii) the commencement of legal proceedings against the Customer for the purpose of liquidation or winding up or bankruptcy or
iii) the appointment of a Receiver over the whole or any part of the Customer’s undertaking or
iv) The calling of a meeting of the Creditors of the Customer.
7. Lien of Goods
In addition of any right of lien to which the Company may by law be entitled to the Company shall be entitled to a general lien on all Goods of the Customer in the Company’s possession (although such Goods or some of them may have been paid for) the unpaid price of any other Goods sold and delivered to the Customer by the Company under the same or any other contract.
8. Losses or Damage in Transit
The Customer shall examine the Goods immediately upon delivery at the Customer’s premises or other premises nominated by the Customer. Any shortage of Goods and/or damage to Goods prior to or during the course of delivery must be notified to the Company in writing either by endorsement on the delivery sheet or otherwise within 14 days of receipt by the Customer, failing which no claim will be accepted by the Company and he Company is hereby discharged from any claim and/or liability in respect of such shortage and/or damage which is not reported as aforesaid.
a) For the period of 12 months from the date of despatch, the Company will replace any parts manufactured by the Company where the parts are used for the purpose notified to the Company prior to the Contract being entered into and which are proved to be defective solely as a result of fault on the part of the Company. The costs of delivery
and installing replacement parts shall be agreed between the parties and failing agreement shall be borne by the Customer.
b) In the case of Goods (including parts) not manufactured by the Company, the manufacturer’s warranty and/or guarantee (if any) in respect of the whole or any part of the Goods is not incorporated as an express or implied term of the contract and any manufacture’s warranty and/or guarantee does not constitute a representation on the part of the Company in respect of the whole or any part of the Goods and the Company has not approved adopted or made any representation pursuant to any manufacturer’s warranty and/or guarantee in respect of the whole or any part of the Goods; if and in so far as the same is assignable, the Company hereby assigns to the Customer the benefit (subject to burden) of any manufacturer’s warranty and/or guarantee in respect of the whole or any part of Goods; the Customer is entitled to the benefit the Company receives of any warranty and/or guarantee given to the Company by the manufacturer in respect of the Goods; the Customer has and shall have no warranty claim or remedy howsoever arriving against the Company in respect of any defects in the Goods; the Customer acknowledges that any warranty and/or guarantee claim which the Customer has or may have in respect of the whole or any part of the Goods lies against the manufacturer of such Goods on the terms of the Manufacturer’s warranty (if any).
c) This clause expresses the full extent of the Company’s warranty in respect of the Goods.
The Company’s quotation is based on the details given to the Company by or on behalf of the Customer and the Company relies on all such representations and all such representations from the basis of any resultant contract. Any variation of such details without the agreement of the Company may invalidate the warranty provided by clause 9.
a) The Company will endeavour to comply with any date given by the Company for despatch or delivery or supply of the Goods but such date is given and intended as an estimate only and time shall not be of the essence of the contract on this regard.
b) If owing to the non-availability to the Company of Goods (including parts) or services or to any other cause beyond the control of the Company it proves impossible or impracticable to effect delivery of the Goods to the Customer the Company shall be at liberty to determine the contract or part thereof by giving notice in writing to the Customer.
c) The Company shall not be liable for any loss or damage arising directly or indirectly from any delay and/or failure to despatch and/or deliver the Goods.
v) the Customer fails and /or refuses to accept delivery of the Goods for any reason whatsoever or
vi) Goods are returned to the Company for any reason whatsoever or
iii) the Customer wrongly releases the Goods to third party.
The Customer shall pay the Company the costs of and incidental to the delivery and
Installation and removal and recovery of the Goods and this shall be in addition to and without prejudice to any other right or remedy of the Company.
12. Loss and damage
a) The Company’s liability to the Customer for any misrepresentation and/or breach of contract and/or negligence shall in no case exceed the Contract price, and save as aforesaid the Company shall in no circumstances whatsoever be liable to the Customer in respect of any loss or damage whether direct, indirect consequential or howsoever else arising.
b) Provided always that sub-clause a) shall not restrict the Company’s Liability for death or personal injury arising from any negligence on the part of the Company.
The Contract is made subject to English law and under the jurisdiction of English Courts.