Terms and Conditions of Sale
1. Definitions
1.1 In these conditions:
‘BUYER’ means the person who accepts a quotation of the Seller for the sale of
the Goods or whose order for the Goods is accepted by the Seller.
‘GOODS’ means the goods and/or services (including any instalment of the
goods and/or services or any parts for them) which the Seller is to supply in
accordance with these Conditions.
‘SELLER’ means Crane Limited trading as Delta Fluid Products Limited.
‘CONDITIONS’ means the standard terms and conditions of sale set out in this
document and (unless the context otherwise requires) includes any special
terms and conditions agreed in writing between the Buyer and the Seller.
‘CONTRACT’ means the contract for the purchase and sale of the goods.
‘WRITING’ includes telex, cable, facsimile transmission and comparable means
of communication.
1.2 Any reference in these Conditions to any 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 Conditions 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 any written or oral quotation of the Seller which is accepted by
the Buyer, or written or oral order of the Buyer which is accepted by the Seller,
subject in either case to these Conditions which shall govern the Contract to the
exclusion of any other terms and conditions.
2.2 No variation to these Conditions shall be binding unless agreed in Writing
between the authorised representatives of the Buyer and the Seller.
2.3 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,
and waives any claim for breach of, such representations which are not so
confirmed
2.4 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.
2.5 Any typographical clerical or other error or omission in any sales
literature, quotation, price list, acceptance of offer, invoice or other document or
information issued by the Seller shall be subject to correction without any liability
on the part of the Seller.
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.
3.2 The Buyer shall be responsible to the Seller 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 and shall indemnify the Seller for any loss, damages,
costs or expenses incurred by reason of the supply of inaccurate information.
3.3 The quantity, quality and description or any process to be applied to the
goods shall be those set out in the Seller’s quotation (if accepted by the Buyer)
or Buyer’s order (if accepted by the Seller).
3.4 If the goods are to be manufactured or any process is to be applied to the
goods by the Seller in accordance with a specification submitted by the Buyer,
the Buyer shall indemnify the Seller against all loss, damages costs and
expenses awarded against or incurred by the Seller in settlement of any claim
for infringement of any patent, copyright, design, trade mark or other industrial
or intellectual property rights of any other person which results from the Seller’s
use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of
the goods which are required to conform with any applicable safety or other
statutory requirements or, where the goods are to be supplied to the Seller’s
specification, which do not materially affect their quality or performance.
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 indemnity 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.
3.7 The Buyer shall be responsible at his cost for arranging
for testing and inspection of the goods at the Seller’s premises.
The Seller reserves the right to refuse to permit the Buyer to
carry out any tests and inspection. The Seller shall have no
liability for any claim in respect of a defect in the goods which
would be apparent on inspection, or in respect of any damage
during transit.
3.8 Where the Seller agrees to perform certain works on the goods on a site
nominated by the Buyer:
3.8.1 the Buyer shall permit the Seller, its servants, agents or any subcontractor
engaged by him to perform his obligations under the agreement the
free use of all available site services including but not limited to electricity, water,
compressed air, gas, canteen and toilet facilities as are available at the
nominated site.
3.8.2 the Seller may perform its obligations at the Buyer’s site by the use of
any sub-contractor without reference to the Buyer.
3.8.3 the buyer shall at all times ensure that the nominated site referred to in
clause 3.8 above in all respects complies with the various provisions of the
Factories Act 1961, the Health and Safety at Work Act 1974 and all Regulations
made under each enactment and any other relevant enactments made by
Parliament from time to time concerning safety on the nominated sites.
3.8.4 the Buyer will indemnify the Seller for any loss or damage following any
breach by the Buyer of the provisions set out in clause 3.8.3.
3.8.5 the Buyer will indemnify the Seller for the full cost including but not
exclusive to damages paid and legal costs incurred in defending and
compromising any actions brought against it by any of its servants or agents or
sub-contractors as a result of the Buyer’s breach of clause 3.8.3 above.
3.8.6 the Buyer will act as insurer for any equipment, materials or tools properly
brought and left on the nominated site by the Seller, its servants or agents or
sub-contractors.
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 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 days 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 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
(such as, without limitation, any foreign exchange fluctuation, currency
regulation, alteration of duties, significant increase in the costs of labour,
materials or other costs of manufacture), any change in delivery dates,
quantities or specifications for 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.
4.3 Except as otherwise stated under the terms of any quotation or in any
price list of the Seller, and unless otherwise agreed in Writing between the
Buyer and the Seller, all prices are given by the Seller on an ex works basis,
and where the Seller agrees to deliver the goods otherwise than at the Seller’s
premises, the Buyer shall be liable to pay the Seller’s charges for transport,
packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer
shall be additionally liable to pay to the Seller.
4.5 The cost of pallets and returnable containers will be charged to the Buyer
in addition to the price of the goods, but full credit will be given to the Buyer
provided they are returned undamaged to the Seller before the due payment
date.
5. Terms of Payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the
Seller, the Seller shall be entitled to invoice the Buyer for the price of the goods
on or at any time after despatch or supply of the goods, unless the goods are to
be collected by the Buyer or the Buyer wrongfully fails to take delivery of the
goods, in which event the Seller shall be entitled to invoice the Buyer for the
price at any time after the Seller has notified the Buyer that the goods are ready
for collection or (as the case may be) the Seller has tendered delivery of the
goods.
5.2 The Buyer shall pay the price in cash on or before the expiry of the
calendar month following that in which the goods are delivered or supplied. The
time of payment of the price shall be the essence of the Contract. Receipts for
payment will be issued only upon request.
5.3 If the Buyer fails to make any payment on the due date then, without
prejudice to any other right or remedy available to the Seller, the Seller shall be
entitled to:
5.3.1 cancel the contract or suspend any further deliveries to the Buyer;
5.3.2 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); and
5.3.3 charge the Buyer interest (both before and after any judgement) on the
amount unpaid, at the rate of 2% per annum above National Westminster 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).
6. Delivery
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 or supply of the goods are approximate
only and the Seller shall not be liable for any delay in delivery or supply of the
goods howsoever caused. Time for delivery or supply shall not be of the
essence unless previously agreed by the Seller in Writing. The goods may be
delivered or supplied by the Seller in advance of the quoted delivery or supply
date upon giving reasonable notice to the Buyer.
6.3 Where the goods are to be delivered in instalments, each delivery shall
constitute a separate contract and failure by the Seller to deliver any one or
more of the instalments in accordance with these Conditions or any claim by the
Buyer in respect of any one or more instalments shall not entitle the Buyer to
treat this Contract as a whole as repudiated.
6.4 If the Seller fails to deliver or supply the goods for any reason other than
any cause beyond the Seller ‘s reasonable control or the Buyer’s fault, and the
Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to
the excess (if any) of the cost to the Buyer (in the cheapest available market) of
similar Goods to replace those not delivered over the price of the goods.
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 readily obtainable and (after deducting all
reasonable storage and selling expenses) account to the Buyer for the excess
over the price under the Contract or charge the Buyer for any shortfall below the
price under the Contract.
7. Risk and Property
7.1 Risk of damage to or loss of the goods shall pass to the Buyer:
7.1.1 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
7.1.2 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 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 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 property in the goods passes to the Buyer, the
Buyer shall hold the goods as the Seller’s fiduciary agent and bailee, and shall
keep the goods separate from those of the Buyer and third parties and properly
stored, protected and insured and identified as the Seller’s property. Until that
time the Buyer shall be entitled to resell or use the goods in the ordinary course
of business, but shall account to the Seller for the proceeds of sale or otherwise
of the goods, whether tangible or intangible, including insurance proceeds, and
shall keep all such proceeds separate from any monies or property of the Buyer
and third parties and, in the case of tangible proceeds, properly stored,
protected and insured.
7.4 Until such time as the property in the goods passes to the Buyer (and
provided the goods are still in existence and have not been resold), the Seller
shall be entitled at any time to require the Buyer to deliver up the goods to the
Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of
the Buyer or any third party where the goods are stored and repossess the
goods.
7.5 The Buyer shall not be entitled to pledge or in any way 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 prejudice to any other right or remedy of the Seller) forthwith become
due and payable.
8. Warranties and Liabilities
8.1 Subject to the conditions set out below the Seller warrants that the goods
will correspond with their specification at the time of delivery and will be free
from defects in material and workmanship for a period of 12 months from the
date of their initial use or 12 months from delivery, whichever is the first to
expire.
8.2 The above warranty is given by the Seller subject to the following
conditions:
8.2.1 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;
8.2.2 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 approval;
8.2.3 the Seller shall be under no liability under the above warranty (or any
other warranty), condition or guarantee if the total price for the goods has not
been paid by the due date for payment;
8.2.4 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
manufacturers to the Seller;
8.3 Subject as expressly provided in these conditions, and except where the
goods are sold to a person dealing as a consumer (within the meaning of the
Unfair Contract Terms Act 1977), all warranties, conditions or other terms
implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the goods are sold under a consumer transaction (as defined by
the Sale of Goods Act 1979) the statutory rights of the Buyer are not affected by
these Conditions.
8.5 Any claim by the Buyer which is based on any defect in the quality or
condition of the goods or their failure to correspond with specification shall
(whether or not delivery is refused by the Buyer) be notified to the Seller within 7
days from the date of delivery or (where the defect or failure was not apparent
on reasonable inspection) within 48 hours after discovery of the defect or failure.
If delivery is not refused, and the Buyer does not notify the Seller accordingly,
the Buyer shall not be entitled to reject the goods and the Seller shall have no
liability for such defect or failure, and the Buyer shall be bound to pay the price
as if the goods had been delivered in accordance with the Contract.
8.6 Where any valid claim in respect of the goods which is based on any
defect in the quality or condition of the goods or their failure to meet
specification is notified to the Seller in accordance with these Conditions, the
Seller shall be entitled to repair or replace the goods (or the part in question)
free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of
the goods (or a proportionate part of the price), but the Seller shall have no
further liability to the Buyer.
8.7 Except in respect of death or personal injury caused by the Seller’s
negligence, the Seller shall not be liable to the Buyer by reason of any
representation, or any implied warranty, condition or other term, or any duty at
common law, or under the express terms of the Contract, for any consequential
loss or damage (whether for loss of profit or otherwise), costs, expenses or
other claims for consequential compensation whatsoever (and whether caused
by the negligence of the Seller, its employees or agents or otherwise) which
arise out of or in connection with the supply of the goods or their use or resale
by the Buyer, except as expressly provided in these Conditions.
8.8 The Seller shall not be liable for any loss or damage howsoever caused
to the Buyer’s property.
8.9 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:
8.9.1 Act of God, explosion, flood, tempest, fire or accident;
8.9.2 war or threat of war, sabotage, insurrection, civil disturbance or
requisition;
8.9.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any
kind on the part of any governmental, parliamentary or local authority;
8.9.4 import or export regulations or embargoes;
8.9.5 strikes, lock-outs or other industrial actions or trade disputes (whether
involving employees of the Seller or of a third party);
8.9.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.9.7 power failure or breakdown in machinery,
8.9.8 non-delivery of the goods when entrusted to a carrier.
9. Indemnity
9.1 If any claim is made against the Buyer that the goods infringe or that their
use or resale infringes the patent, copyright, design, trade mark or other
industrial or intellectual property rights of any other person, the Seller shall
indemnify the Buyer against all loss, damages, costs and expenses awarded
against or incurred by the Buyer in connection with the claim, or paid or agreed
to be paid by the Buyer in settlement of the claim, provided that:
9.1.1 the Seller is given full control of any proceedings or negotiations in
connection with any such claim;
9.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes
of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept any
such claim, or compromise any such proceedings without the consent of the
Seller (which shall not be unreasonably withheld);
9.1.4 the Buyer shall do nothing which would or might vitiate any policy of
insurance or insurance cover which the Buyer may have in relation to such
infringement, and this indemnity shall not apply to the extent that the Buyer
recovers any sums under any such policy or cover (which the Buyer shall use its
best endeavours to do);
9.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall
accordingly account to the Seller for, all damages and costs (if any) awarded in
favour of the Buyer which are payable by or agreed with the consent of the
Buyer (which consent shall not be unreasonably withheld) to be paid by any
other party in respect of any such claim; and
9.1.6 without prejudice to any duty of the Buyer at common law, the Seller shall
be entitled to require the Buyer to take such steps as the Seller may reasonably
require to mitigate or reduce any such loss, damages, costs or expenses for
which the Seller is liable to indemnify the Buyer under this Clause.
10. Insolvency of the Buyer
10.1 This clause applies if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes
subject to an administration order or (being an individual or firm) becomes
bankrupt or (being a company) goes into liquidation (otherwise than for the
purpose of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of
the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned
above is about to occur in relation to the Buyer and notifies the Buyer
accordingly.
10.2 If this clause applies then, without prejudice to any other right or remedy
available to the Seller, the Seller may:
10.2.1 cancel the Contract or suspend any further deliveries under the Contract
without any liability to the Buyer and invoice the Buyer on the quantum meruit
basis which shall become immediately due and payable notwithstanding the
delivery has not taken place;
10.2.2 if the goods have been delivered but not paid for the price shall become
immediately due and payable notwithstanding any previous agreement or
arrangement to the contrary;
10.2.3 demand cash on delivery.
11. Export Terms
11.1 In these circumstances ‘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.
11.2 Where the goods are supplied for export from the United Kingdom, the
provisions of this clause 11 shall (subject to any special terms agreed in writing
between the Buyer and the Seller) apply notwithstanding any other provisions of
these Conditions.
11.3 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 thereon.
11.4 Unless otherwise agreed in Writing between the Buyer and the Seller, the
goods shall be delivered to the air or sea port of shipment and the Seller shall
be under no obligation to give notice under section 32(3) of the Sale of Goods
Act 1979.
11.5 Payment of all amounts due to the Seller shall be made by irrevocable
letter of credit opened by the Buyer in favour of the Seller and confirmed by a
bank in England acceptable to the Seller or, if the Seller has agreed in Writing
on or before acceptance of the Buyer’s order to waive this requirement, by
acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn
on the Buyer payable 60 days after sight to the order of the Seller at such
branch of National Westminster Bank in England as may be specified in the bill
of exchange.
12. General
12.1 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.
12.2 A notice shall be deemed to have been given on the day of delivery if
served personally, 12 hours after the time of despatch in the case of telex,
telemessage, fax or cable and 48 hours after posting if served by post which
must be registered or recorded delivery.
12.3 No waiver by the Seller of any breach of the Contract by the Buyer or the
Seller shall be considered as a waiver of any subsequent breach of the same or
any other provision.
12.4 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 thereby.
12.5 This contract shall be governed by and construed in all respects and in
accordance with the laws of England and the Buyer and the Seller agree to
submit to the exclusive jurisdiction of the English Courts.
FIN

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