Ullman Sails GBR Limited
These terms and conditions apply to all contracts for works or goods undertaken by us on or after 1 January 2017
1.1 In these terms and conditions, the following words shall have the following meanings:-
“The Company” shall mean Ullman Sails GBR Ltd.
“Goods” shall mean the products articles or items, which are listed in the Companies price list at the time of delivery
“Works” shall be any undertaking by the Company or the Companies Sub-contractors requiring time, skill, or knowledge falling within the scope of the Companies experience.
“The Buyer” shall mean the persons referred to herein
1.2 In this Agreement, “Persons” or “Agents” include individuals, companies, partnerships, limited liability partnerships, unincorporated associations and trusts.
1.3 The ejusdem generis rule is not intended to be used in the interpretation of these terms and conditions; it follows that a general concept or category utilised in these terms and conditions will not be limited by any specific examples or instances utilised in relation to such a concept or category.
1.4 If a Clause of these terms and conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of these terms and conditions will continue in effect.
2. COMMENCING THE CONTRACT
2.1 The Company’s salesmen are not authorised representatives and are not authorised to accept representation or promise on the Company’s behalf and no such representation shall be binding on the Company unless confirmed by an authorized representative of the Company in writing. In entering into the Contract the Buyer acknowledges that he/she/it does not rely on and waives any claim for any breach of any such representation not so confirmed.
2.2 The estimate/quotation, which comprises an invitation to treat, is open for a period of 30 days only from the date thereof, provided that the Company has not previously withdrawn it. Any order issued by the Buyer is subject to acceptance by the Company and a contract will only be formed when the company has accepted the Buyer’s offer to buy in writing. Any offer made by the Buyer orally must be confirmed in writing by the Buyer.
2.3.1 These conditions shall apply to all contracts for the sale of goods and/or works by the Company 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.
2.3.2 All orders for goods and/or works shall be deemed to be an offer by the buyer to purchase goods and/or works pursuant to these conditions.
2.3.3 Acceptance of delivery of the goods, commencement of the works or payment (full or partial) for the goods and/or works, whichever is first, be shall deemed conclusive evidence of the Buyers acceptance of these conditions.
2.3.4 Any variation to these conditions (including any special terms and conditions agreed between parties) shall be inapplicable unless agreed in writing by the Company.
2.4 The Buyer shall be responsible to the Company for ensuring the accuracy of the terms of any order submitted by the Buyer and for giving the Company any necessary information relating to the goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
2.5 The quantity, quality and description of any specifications for the goods and/or works shall be those set out in the Company’s quotation if accepted by the Buyer or the Buyer’s order if accepted by the Company.
2.6 These terms and conditions exclude any other terms and conditions inconsistent therewith which a Buyer might seek to impose even though such other terms and conditions may be submitted in a later document and/or purport to exclude or supersede any terms or conditions inconsistent with them or may be contained in any offer acceptance or counter offer made by the Buyer.
3.1 No cancellation by the Buyer is permitted except where expressly agreed by a Director of the Company in writing.
3.2 In the event of any cancellation accepted by the Company the Buyer shall indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses incurred by the Company as a result of cancellation.
4.1 All prices quoted are those ruling at the date of delivery.
4.2 Unless otherwise stated all prices quoted are net ex works exclusive of VAT and are in sterling.
4.3 The Company reserves the right at any time prior to delivery of the goods to adjust the price to take account of any increase in the cost of raw materials, parts, labour and services or any currency fluctuations affecting the cost of imported materials and products.
4.4 When the Company gives an estimation or indication of price it exercises skill and judgment in doing so. Such estimates are based on the information available at the time and do not include the costs of additional labour, goods or other works found necessary to complete the work or any extension to the work comprised in the estimate.
4.5 The Company will inform the Buyer promptly of any proposed increase in estimated pricing and will only proceed with the written consent. The Buyer remains liable for all works undertaken and goods delivered.
5. TERMS OF PAYMENT
5.1 The Buyer will pay all sums due to the Company before delivery of the goods or the commencement of works relating to the contract, unless otherwise agreed by both parties.
5.2 Time for payment shall be of the essence.
5.3 The Company reserves the right to charge the buyer interest on any overdue amount at the rate of 5% per month above the base rate of Barclays Banks plc (which interest will accrue daily until the date of actual payment, be compounded quarterly, and be payable on demand);
5.4 The Buyer shall have no right of set off, statutory or otherwise.
5.5 The Company reserves the right at any time at its discretion to demand security for payment before continuing with or delivering any Order.
5.6 If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Company the Company shall be entitled to cancel any Contract or suspend any further deliveries to the Buyer.
5.7 The Company shall at any time be entitled to appropriate any payment made by the Buyer in respect of any Goods in settlement of such invoices or accounts in respect of such Goods as the Company may in its absolute discretion think fit notwithstanding any purported appropriation to the contrary by the Buyer.
6.1 All items quoted for are ex works and to be collected from the premises in Plymouth unless agreed in advance.
6.2 Time of delivery and/or completion of the Works are not of the essence.
6.3 The Company shall not be liable for any loss whatsoever or howsoever arising caused by its non-delivery or by the failure to make Goods ready for collection on the due date.
6.4 The Company reserves the right to make delivery by installments and to tender a separate invoice in respect of each installment.
6.5 Where any goods are to be delivered in installments each delivery shall constitute a separate Contract and failure by the Company to deliver any one or more of the installments in accordance with these conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the contract as a whole as repudiated.
6.6 Where the works are to be completed in installments each installment shall constitute a separate Contract and failure by the Company to complete any one or more of the installments of works in accordance with these conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.7 Deviations in quantity of the Goods delivered (representing not more than 15 per cent by value) from that stated in these terms and conditions shall not give the Buyer any right to reject the Goods or to claim damages and the Buyer shall be obliged to accept and pay at the contract rate for the quantity of the Goods delivered.
6.8 If the Buyer fails to take delivery of the goods or fails to give the Company adequate delivery instructions at or by the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Company’s fault) then without prejudice to any other right or remedy available to the Company the Company may:
(a) Store the goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
(b) Sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer any excess over the price under the contract or charge the Buyer for any shortfall below the price under the contract.
7.1 Risk in the Goods shall pass to the Buyer when the Goods are delivered to, or collected by, the Buyer or its agent.
7.2 Notwithstanding risk in the goods passing in accordance with clause 7.1 hereof title in the Goods shall not pass to Buyer until provisions of paragraph 8 hereof have been satisfied.
8. RETENTION OF TITLE PROVISION
8.1 In spite of delivery having been made property in the goods shall not pass from the Company until:
8.1.1 The Buyer shall have paid the price plus VAT and any additional charges in full; and
8.1.2 No other sums whatever shall be due from the Buyer to the Company.
8.2 Until property in the goods passes to the Buyer in accordance with clause 8.1 the Buyer shall hold the goods and each of them on a fiduciary basis as Bailee for the Company. The Buyer shall store the Goods (at no cost to the Company) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Company’s property.
8.3 Notwithstanding that the Goods (or any of them) remain the property of the Company the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at full market value for the account of the Company. Any such sale or dealing shall be a sale or use of the Company’s property by the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Company the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Company and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Company’s money.
8.4 The Company shall be entitled to recover the Price (Plus VAT) notwithstanding that property in any of the Goods has not passed from the Company.
8.5 Until such time as property in the Goods passes from the Company the Buyer shall upon request deliver up such of the goods as have not ceased to be in existence or resold to the Company. If the Buyer fails to do so the Company may enter upon the premises owned occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under clauses 10.4 shall cease.
8.6 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods, which are the property of the Company. Without prejudice to the other rights of the Company, if the Buyer does so all sums whatever owing by the Buyer to the Company shall forthwith become due and payable.
8.7 The Buyer shall insure and keep insured the Goods to the full Price against `all risks’ to the reasonable satisfaction of the Company until the date that property in the Goods passes from the Company, and shall whenever requested by the Company produce a copy of the policy of insurance. Without prejudice to the other rights of the Company, if the Buyer fails to do so all sums whatever owing by the Buyer to the Company shall forthwith become due and payable.
8.8 The Buyer shall promptly deliver the prescribed particulars of this contract to the Registrar in accordance with the Companies Act 1985 Part XII as amended. Without prejudice to the other rights of the Company, if the Buyer fails to do so all sums whatever owing by the Buyer to the Company shall forthwith become due and payable.
9.1 The Buyer is under a duty wherever possible to inspect the Goods on delivery or on collection as the case may be.
9.2 Where the Goods cannot be examined the carriers 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 met with, and, in any event will be under no liability if a written complaint is not delivered within two days of delivery detailing the alleged defect or confirm or vary any order nor to make any 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 thereto by the Buyer.
9.5 Subject to Clause 9.3 and Clause 9.4 the Company at the option of the Company shall either make good any shortage in the Goods and where appropriate replace any Goods damaged in transit as soon as it is reasonably able to do so, or shall credit any such shortage or damaged goods but otherwise shall be under no liability whatsoever or howsoever arising for such shortage or damage.
10.1 The Company warrants that it has title to and the unencumbered right to sell the Goods.
10.2 All terms, conditions and warranties (whether implied or made expressly) whether by the Company or its servants or agents or otherwise relating to the quality and/or fitness for purpose of the goods or any of the goods are excluded and the buyer shall satisfy himself in this respect and shall be totally responsible therefore, excepting where the Company has prior to supply and in writing provided advice specific to the goods purchased and where the Buyer has in writing provided sufficient details of the purpose of the goods and made it clear he is relying the Companies skill and judgment, this applies only to the works and/or goods in question and not the whole contract.
10.3 In addition to the statutory rights provided by English law the Company guarantees it’s works for a period of 12 months from completion against all defects which are due to poor workmanship or defective materials supplied by the Company to the buyer.
10.3.1 The Company is liable under this clause only for works completed by the Company for defects which appear during the 12 month period and where the company is notified in writing promptly following discovery of the defect.
10.3.2 The Geographical area within which this guarantee will be honored is restricted to the UK.
10.4 If the Goods are in such a state as would but for it’s condition entitle the Buyer to repudiate the contract and/or claim damages from the Company the Company reserves the right to repair or replace the Goods
10.5 Subject to the express provisions of these conditions and except where 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. Where the goods are sold under a consumer transaction as defined by the Consumer Transactions (Restrictions on Statements) Order (1976) the statutory rights of the Buyer are not affected by these conditions.
11.1 We shall not be liable for any loss or damage caused by events or circumstances beyond our reasonable control (such as severe weather conditions, the actions of third parties not employed by us or any defect in a customer’s or third party’s property); this extends to loss or damage to vessels, gear, equipment or other property left with us for work or storage, and harm to persons entering our premises or using any of our facilities or equipment.
11.2 We shall take reasonable and proportionate steps having regard to the nature and scale of our business to maintain security at our premises, and to maintain our facilities and equipment in reasonably good working order; but in the absence of any negligence or other breach of duty by us vessels and other property are left with us at the customer’s own risk and customers should ensure that their own personal and property insurance adequately covers such risks.
11.3 We shall not be under any duty to salvage or preserve a customer’s vessel or other property from the consequences of any defect in the vessel or property concerned unless we have been expressly engaged to do so by the customer on commercial terms. Similarly we shall not be under any duty to salvage or preserve a customer’s vessel or other property from the consequences of an accident which has not been caused by our negligence or some other breach of duty on our part. However we reserve the right to do so in any appropriate circumstances, particularly where a risk is posed to the safety of people, property or the environment. Where we do so we shall be entitled to charge the customer concerned on a normal commercial basis.
11.4 Nothing in these Terms of Business shall limit or exclude our liability for death or personal injury caused by our negligence or the negligence of our employees, agents or sub-contractors; for fraud or fraudulent misrepresentation; or otherwise to the extent that it would be illegal for us to exclude or attempt to exclude liability.
11.5 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 of consequential or indirect loss would be:
– loss of profit
– loss of contract
– 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).
11.6 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 £1,000,000 or the contract price whichever is the greater.
11.7 The Buyer may be liable for any loss, damage or injury to property or person caused by them or their agents. The Buyer is advised to maintain adequate insurance to cover third party liability of at least £1,000,000.
12. INSOLVENCY OR OTHER DEFAULT
If the buyer fails to make payment for the goods in accordance with this contract or commits any other breach of this contract or if any distress or execution shall be levied on any of the Buyers goods or if the Buyer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a Limited Company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a Receiver, Administrator, Administrative receiver or Manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogues proceedings under foreign law all sums outstanding in respect of the goods shall become payable immediately. The Company, in its absolute discretion and without prejudice to any other rights which it may have, may:
12.1 Suspend all future deliveries of goods to the Buyer and/or terminate the contract without liability upon its part and
12.2 Exercise any or all of its rights pursuant to clause 8.
13.1The Company reserve the right to entrust part or all of the works required in a contract to the buyer to a 3rd party (hereby known as the Sub-Contractor).
13.2 The Sub-Contractor shall have all the protection and benefits of all rights and conditions and all of the limitations and exclusions of liability, contained in the terms and conditions of Business.
14. SET OFF AND COUNTERCLAIM
The buyer may not withhold payment of any invoice or other amount due to the Seller by reason of nay right of set off or counterclaim which the buyer may have or alleged to have or for any reason whatsoever.
15. FORCE MAJEURE
16.1 The Company shall not be liable for any failure to deliver the Goods arising from circumstances outside the Company’s control.
16.2 Should the Company be prevented from delivering in the above circumstances, it shall give the Buyer written notice of this fact as soon as reasonably practicable after discovering it.
16.3 If the circumstances preventing delivery are still continuing three months after the Buyer receives the Company’s notice, then either party may give written notice to the other cancelling the contract.
16.4 If the Contract is cancelled in this way, the Company will refund any payment which the Buyer has already made on account of the price (subject to deduction of any amount the Company is entitled to claim from the Buyer) but the Company will not be liable to compensate the Buyer for any further loss or damage caused by the failure to deliver.
If any dispute or difference shall arise between the parties it shall be referred to the determination of an arbitrator to be appointed by agreement of the parties or in default of agreement within 14 days of the service upon one party of a written request to concur in such appointment by the president for the time being of the Chartered Institute of Arbitrators who shall determine the dispute in accordance with the provisions of the Arbitration Acts 1950 to 1979 or any statutory modification or enactment for the time being in force.
18. PROMOTIONAL DOCUMENTATION
Whilst the Company takes every precaution in the preparation of its catalogues, technical circulars, price lists and its other literature, these documents are for the Buyer’s general guidance only and the particulars contained therein shall not constitute representations by the Company and the Company shall not be bound thereby.
Any notice to be given hereunder shall be in writing and shall be deemed to have been duly given if sent or delivered to the party concerned at its address specified overleaf or such other address as that party may from time to time notify in writing and shall be deemed to have been served, if sent by post, 48 hours after posting.
Neither the Company nor the Buyer shall assign or transfer or purport to assign or transfer the contract or the benefits thereof to any other person without the prior written consent of the other.
21. PROPER LAW AND JURISDICTION.
This contract shall be governed and construed in accordance with the Law of England and Wales and subject to the provisions of paragraph 15 hereof all disputes arising in connection with the contract shall be submitted to the jurisdiction of the English Courts.
The headings of these conditions are for convenience only and shall have no effect on the interpretation thereof.