Titgemeyer: Terms and conditions

Terms and conditions

Titgemeyer (UK) Limited

Terms and Conditions of Sale

1. The Company
Titgemeyer (UK) Ltd shall hereafter be referred to as "the Company".

2. General
All contracts for the supply of goods by the Company will be subject to the following conditions to the exclusion of any addition, modification or variations thereof save such addition, modification or variation as shall be agreed in writing by the Company. Unless expressly accepted in writing by the Company any qualifications of these terms and conditions of sale or any conditions which may be contained in any written or printed document including any order form of the Buyer shall be deemed to be excluded from any contact arising between the Company and the Buyer.

3. Basis of Quotation
Any order from the Buyer will be accepted on the understanding that goods will be charged at the prices prevailing on the date of despatch. Value Added Tax will be charged at the appropriate rate on the date of despatch and prices published in the Company's catalogue or other sales literature are liable to variation without notice.
4. Payment
Unless otherwise agreed by the Company in writing all prices are quoted strictly net for delivery ex works and the Buyer shall pay the invoice to the Company in the currency invoiced by the Company to the Buyer not later than thirty days from the end of the month of invoice
date and for this purpose time shall be deemed to be of the essence of the contract. The Buyer shall not be entitled to withhold or set off payment for goods delivered for any reason whatsoever. The Company reserves the right to suspend or cancel the performance of any
contract entered into with the Buyer when any account is overdue for settlement.
5. Interest
The Company reserves the right to charge interest at the rate of 2% per calendar month on all overdue accounts. From the date payment is due to the date of actual payment such interest charge to be appointed on a daily basis.
6. Prices
The Company reserves the right to vary the quoted prices:
(a) to conform to the Company's price for similar goods ruling at the date of despatch and in the case of goods delivered by installments the Company may without notice to the Buyer vary the quoted price in accordance with this clause at the time of despatch of each and every
installment of delivery of the goods.
(b) to take account of changes in labour material and other costs and expenses between quotation and delivery.
(c) if any alteration is made in any specification upon which the quotation was based.
(d) if any variation is made by the Company at the request of the Buyer in the method place and time of delivery of the goods and in the case of delivery of goods by installment if any variation is made in the quantity of each installment and time of delivery.
(e) the Company will not insure the goods in transit and unless requested to do so by the Buyer and agreed to by the Company in writing.
7. Orders
Written confirmation of telephone orders must be clearly marked as such, otherwise the Company cannot be held responsible for duplication of an order. The right is reserved to refuse acceptance of any order from time to time if an account is in arrears. The Company also reserves absolute discretion to refuse acceptance of an order at any time. No order may be cancelled without the Company's previous agreement and its subsequent receipt of written confirmation of such cancellation.
8. Delivery Date
(a) whilst the Company will use its best endeavors to keep to promised delivery dates they are approximate only and no guarantee or warranty can be given in relation thereto. The Company accepts no liability for any loss or damage or loss of market resulting in delay in
completion or works or delivery of the goods howsoever caused, nor shall any delay entitle the Buyer to cancel any order or to refuse to accept delivery or withhold all or any part of the purchase price.
(b) in the event of the Company employing any agent firm Company or subcontractor to carry out the order or any part thereof the Company will not be liable to the Buyer for any neglect delay or default by such agent firm Company or subcontractor and shall not be liable to the
Buyer for any loss or damage or loss of market arising from such neglect delay or default as aforesaid nor shall any delay entitle the Buyer to cancel any order or to refuse to accept delivery or withhold any part of the purchase price.
9. Inspection
9.1 The Buyer is under a duty whenever possible to make an inspection of the goods on delivery or on collection as the case may be.
9.2 Where the goods cannot be examined the carrier’s note, or such other note as appropriate shall be marked "not examined".
9.3 The Company shall be under no liability for any defects or shortages that would be apparent on careful inspection if the terms of this clause are not complied with, and, in any event will be under no liability if a written complaint is not delivered to the Company within seven days of delivery detailing the alleged defect or Shortage.
9.4 In all cases where defects or shortages are complained of the Company shall be under no liability in respect thereof unless an opportunity to inspect the goods is supplied to the Company before any use is made thereof or any alteration or modification is made by the
Buyer.
9.5 Subject to clause 9.3 and 9.4 the Company shall make good any shortage or over supply in the goods where this exceeds 10% and where appropriate replace any goods damaged in transit as soon as it is reasonably able to do so, but otherwise shall be under no liability
whatsoever or howsoever arising from such shortage or damage.
10. Warranty
10.1 The Company warrants and is entitled to an unencumbered right to sell the goods.
10.2 No representation or warranty is given as to suitability or fitness of the goods for any particular purpose and the Buyer shall satisfy himself in this respect and shall be totally responsible therefore.
10.3 If the goods are in such state or would but for this condition entitle the Buyer to repudiate the contract and/or claim damages from the Company and the Company reserves the right to replace the goods.

11. Liability
11.1 Nothing In clause 11 shall be deemed to exclude or restrict the Company's liability for death or personal injury resulting from
negligence.
11.1.2 Each of the sub-clauses In clause 11 is to be treated as separate and independent.
11.2 Exclusion
11.2.1 Clauses 11.2 only covers defects caused by faulty design, manufacture, materials or workmanship. It does not cover defects caused by abnormal use, misuse or neglect.
11.2.2 The Company agrees that if any defect covered by clause 11.2 is discovered during the period of three months commencing with the date of dispatch, the Company will either repair the goods at its own expense or, if it chooses to do so, replace them.
11.2.3 The Buyer cannot claim the benefit of this clause unless he informs the Company of the relevant defect in writing within 7 working days of discovering it: and he returns the goods to the Company at his own expense.
11.2.4 The risk of accidental loss whilst the goods are being returned will be borne by the Buyer.
11.2.5 In consideration for receiving the benefit of this clause the Buyer agrees that apart from those terms set out in clauses 9 and 10 no other terms whether conditions or warranties or innominate terms express or implied statutory or otherwise shall form part of this contract.
11.3 Exclusion of consequential loss. The Company shall not be liable for any consequential or indirect loss suffered by the Buyer whether this loss arises from breach of a duty
in contract or tort or in any other way (including loss arising from the Company's negligence). Non-exhaustive illustrations or consequential
or indirect loss would be loss of profits loss of contracts damage to property of the Buyer or anyone else and personal injury to the Buyer or
anyone else (except so far as such injury is attributable to the Company's negligence).
11.4 Limitation
The Company's total liability for any one claim or for the total of all claims arising from any one act or default of the Company (whether arising from the Company's negligence or otherwise) shall not exceed £100,000.00 or the contract price whichever is the greater.
12. Buyers Insolvency
If the Buyer commits an act of bankruptcy or becomes insolvent or makes any composition or arrangements with his creditor, or being a Company is placed in liquidation or suffers a receiver and/or manager to be appointed to the Company may without liability or notice and
without prejudice to any other rights determine all or any contract with the Buyer and the Buyer will bear all and any loss or damage incurred by the Company resulting from resale or scrapping of the goods comprised in such contract determined as aforesaid.
13. Quantities and Weights
Quantities and/or weights of all consignments of the goods whether delivered by installment or otherwise as ascertained by the Company and notified to the Buyer in writing shall be conclusive evidence of such quantities and or weights as between the Company and the Buyer and any person firm or company rightfully claiming by through in or under trust for them unless any irregularity in the number or weight thereof is communicated in writing to the Company within 7 days of the delivery of the goods or notification that the goods are available "Ex works" and subject always to correction or arithmetical error.
14. Title
(a) the risk in the goods supplied by the Company to the Buyer shall pass to the Buyer on delivery.
(b) all goods supplied by the Company to the Buyer shall be stored by the Buyer separate from the Buyer’s own goods in such manner as the Company may from time to time direct for the purpose of enabling the Company to identify the goods the title to which has been retained under the within written conditions of sale.
(c) if any of the goods are incorporated or used as material for other goods (the new goods) the property in the goods and the new goods shall belong to and remain with the Company until payment in full of all sums due from the Buyer to the Company, and the Company's rights in the goods hereunder shall extend to the new goods.
(d) the ownership of property in the goods and the new goods shall remain with the Company which reserves the right to dispose of the same until payment in full of all sums due from the Buyer to the Company on any accounts whatsoever or until such time as the Buyer sells
the goods in the form of the new goods to its Buyer byway of a bona fide sale at full market value on the basis that the proceeds of such sale shall be deemed to have been received by the Buyer on the Company's behalf as its agent. The proceeds of such sales shall be paid
by the Buyer Into a separate Bank account details of which shall be furnished by the Buyer to the Company upon request
(e) the Buyer's power of sale in respect of the goods and the new goods shall automatically cease and all sums payable in respect of goods supplied by the Company the seller will become immediately payable if the Buyer is in default for a period exceeding seven days in payment of any sum whatsoever due to the Company (whether in respect of the goods or any other goods supplied to the Buyer) or If a Receiver is appointed over any of the assets of the Buyer or the undertaking of the Buyer, or a Winding Up Order is made against the Buyer or the
Buyer goes into voluntary liquidation (otherwise than for the purpose of a reconstruction or amalgamation) or calls a meeting or makes arrangement or composition with its creditors (or being an individual or a partnership commits any act or bankruptcy) or allows distress to be levied against any of its or his goods.
(f) upon determination of the Buyer's power of sale hereunder the Buyer shall deliver up the goods and the new goods to the Company and the Company and its servants and/or agents shall be entitled using such force as is reasonably necessary to enter upon premises of the
Buyer for the purpose of removing such goods and the new goods from such premises.
(g) until the Company is paid In full as aforesaid the relationship of the Buyer shall be fiduciary in respect of the goods and the new goods and if the same were sold by the Buyer the Company shall have the right to trace the proceeds thereof according to the principles in Re Halletts Estate (1880) 13 Chancery Division 696 (1874/80) AER (793) A like right for the Company shall apply where the Buyer uses the goods or the new goods in any way so as to be entitled to payment from a third party.
15. Data
Illustrations, weights measures, performance, capabilities, application suitability information and other data set out in the sales literature of the Company are statements of opinion and are provided for information only and form no part of the contract.
16. Delivery other than Ex-Works
If the Company agrees to delivery of a C.I.F.F.O.B. or in some manner other than Ex Works basis then the Company shall if requested by the Buyer make such shipping arrangements for the Buyer who shall reimburse the Company for all expenses incurred by the Company on
the Buyers behalf and all risk shall pass to the Buyer when they are loaded onto transport ex the Company's works (or If loaded on transport belonging to the Company as soon as the goods pass into the custody of a person other than the Company). The Company accepts no
liability whatsoever in respect of any mistakes or errors in the shipping arrangements made by it on behalf of the Buyer, but will endeavor to assist the Buyer in making claims against those persons (if any) through whom the Company may have made such arrangements and the Buyer shall pay the Company all costs expenses and charges incurred by the Company by virtue of the Company assisting the Buyer in making such claim as aforesaid.

17. Force Majeure
If at any time the Company shall be hindered or prevented from making or delivering goods by reason of strikes or other labour disputes fire war accidents Governmental action or any other cause beyond the Company's control, the Company's obligation shall be suspended until such cause shall have ceased to operate and have effect and the Company may at any time during the continuance of such hindrance or prevention by notice to the Buyer determine this contract so far as it remains unperformed without incurring any liability for damages to the Buyer or any Buyer of theirs by reason of such determination.
18. Applicable Law
The terms of any contract to which these conditions relate shall in an respects be construed and operate in-conformity with the law of England and Wales and the English Courts shall have exclusive jurisdiction to determine all questions or matters relating hereto or arising.

Titgemeyer UK Ltd Terms and Conditions of Sale April 2009