Terms & Conditions of Sale
1. Definitions And Interpretation
1a In these Terms and Conditions the following expressions will have the following meaning unless inconsistent with the context:-
Buyer: The person(s), firm or company whose order for the Goods is accepted by the Company
Company: Proweight Limited
Conditions: The standard terms and conditions of sale set out in this document together with any special terms agreed in writing between the Buyer and the Company.
Confidential Information: All information in respect of the business of the Company including, but not limited to, know-how or other matters connected with the Goods or Services, and information concerning the Company’s relationships with actual or potential clients, customers or suppliers and the needs and requirements of the Company and of such persons and any other information which, if disclosed, will be liable to cause harm to the Company.
Contract: Any contract between the Company and the Buyer for the sale and purchase of the Goods or supply of the Services formed in accordance with Condition 2.
Delivery Point: The place where delivery of the Goods is to take place under Condition 7a detailed in the Company’s quotation or as otherwise agreed between the Company and the Buyer.
Force Majeure: Any cause preventing the Company from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable contemplation and control of the Company including, without limitation, strikes, lockouts or other industrial disputes (whether involving the work force of the Company or otherwise), protest, Act of God, war, or national emergency, an act of terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, explosion, flood, storm, epidemic/pandemic or default of suppliers or sub-contractors.
Goods: Any goods which the Company supplies to the Buyer (including any of them or any part of them) under the Contract.
Services: Any services which the Company provides to the Buyer (including any of them or any part of them) under the Contract including any referred to in Condition 9.
Service Point: The place at which the Services are to be performed detailed in the Company’s quotation or as otherwise agreed between the Company and the Buyer.
2a: Subject to any variation under Condition 2g the Contract will be upon these Conditions to the exclusion of all other terms and conditions and all previous oral or written representations, including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order or similar document, whether or not such document is referred to in the Contract.
2b: Each order or acceptance of a quotation for Goods or Services will be deemed to be an offer by the Buyer to purchase Goods or Services upon these Conditions. The Contract is formed when the order is accepted by the Company either by way of a written acknowledgement of order or by way of the Company commencing work under the Contract.
2c: Any quotation is valid for a period of 30 days only from its date, provided the Company has not previously withdrawn or superseded it.
2d: The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2e: Acceptance of delivery of the Goods or commencement of the performance of the Services will be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2f: Subject to Conditions 11 and 12, the Buyer may not cancel the Contract. The Company may cancel the Contract at any time prior to delivery.
2g: Save as set out in the Contract, these Conditions may only be varied or amended in writing and signed by a director of the Company.
3. The Goods
3a: The quantity and descriptions of the Goods or Services will be as set out in the Company’s quotation or in the agreed specification.
3b: All samples, drawings and particulars of weights, measurements, ratings, descriptive matter, specifications and advertising issued by the Company (or the manufacturer of the Goods) and any descriptions or illustrations contained in the Company’s or manufacturer’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods or Services represented by or described in them. They will not form part of the Contract and this is not a sale by sample.
3c: The Buyer shall promptly as and when requested by the Company from time to time:-
1) Provide the Company with full, complete and accurate details of and information concerning the Buyer’s operations, systems and processes for which the Goods are required and their intended use and any other information as the Company may require from time to time in connection with the performance of its obligations under the Contract, and
2) Supply the Company with such samples of product(s), components and parts in connection with which the Goods may be required and in such quantities as the Company shall request.
3d: The Company may make any changes to the specification, design, materials or finishes of the Goods or provision of the Services which:-
1) Are required to conform with any applicable safety or other statutory or regulatory requirements, or:-
2) Do not materially affect their quality or performance.
4a: The price for the Goods and Services will be the Seller’s quoted price or where no price has been quoted (or a quoted price is no longer valid) the ex-works price set out in the Company’s published price list current at the date of acceptance of order and is exclusive of:-
1) Any costs of packaging and:-
2) Any costs of carriage of the Goods where the Company agrees to transport the Goods the Buyer’s premises and:-
3) Any Value Added Tax or other applicable sales tax or duty which will be added to the sum in question.
4b: The cost of any pallets and returnable packaging or containers will be paid for by the Buyer in addition to the price for the Goods when it is due to pay for the Goods.
4c: The Company reserves the right by giving notice to the Buyer at any time before delivery of the Goods or before the commencement of the provision of the Services to increase the price of the Goods or the Services to reflect any increase in the cost to the Company of supplying the Goods or of providing the Services or any part thereof caused directly or indirectly (without limit) by:-
1) Fluctuations in exchange rates, currency regulations, variation or imposition of any tax or alteration of duties.
2) An increase in the costs of labour, materials or other costs of manufacture.
variation, modification or change whatsoever in the specification or design or
nature of the Goods or Services required by the Buyer and agreed to by the
4) Any change in the delivery dates required by the Buyer and agreed to by the Company.
5) Any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instructions.
5a: Subject to any special terms agreed between the Company and the Buyer the Company may invoice the Buyer:-
1) For an initial deposit (which is none refundable) and:-
2) For the Goods on or at any time after the Company has notified the Buyer that the Goods have been tested under Condition 6 and that they are ready for dispatch, and:-
3) For the Services on or at any time after performance commences.
5b: Payment is due in pounds sterling 30 days after the date of any invoices.
5c: Time for payment will be of the essence.
5d: No payment will be deemed to have been received until the Company has received cleared funds.
5e: All sums payable to the Company under the Contract will become due immediately upon termination of the Contract.
5f: All payments to be made by the Buyer under the Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for, or on account of, any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless the Buyer is required by law to make any such deduction or withholding.
5g: The Company may appropriate any payment made by the Buyer to the Company to such of the invoices for the Goods or Services as the Company thinks fit, despite any purported appropriation of the Buyer.
5h: If any sum payable under the Contract is not paid when due, then without prejudice to the Company’s other rights under the Contract, that sum will bear interest from the due date until payment is made in full, both before and after any judgement, at 4% per annum over Bank Base Rate and the Company will be entitled to suspend deliveries of the Goods or performance of the Services until the outstanding amount has been received by the Company from the Buyer.
6a: All Goods will be submitted to the Company’s standard pre-delivery tests before being dispatched. The Company may notify the Buyer of the date, time and location of such tests and the Buyer shall be entitled to attend.
6b: The Company shall at the appointed date, time and location perform the tests referred to in Condition 6a. If the Buyer shall fail to attend the Company is entitled to continue with the tests in the Customer’s absence.
6c: The Company shall make and keep for a reasonable time appropriate records of the tests performed and their results.
6d: If as a result of such tests the Goods shall be found not to comply with the Contract in any material respect the Company shall carry out such further work on the Goods as may be required within such time as shall be reasonable having regard to the nature and gravity of the problem so found.
6e: Any further tests required by the Buyer will be charged as extra. If the Buyer fails to attend at the location on the date and time specified for such further tests (and the Company shall give 7 days notice of such date) then such further tests may be made in the absence of the Buyer but deemed to have been made in the Buyer’s presence and to be conclusive. Any delay occasioned by a request for further tests shall be taken into account in computing the time for dispatch.
7a: Delivery of the Goods will be made ex-works as defined in INCOTERMS 2020. The Services will be performed at the Service Point.
7b: The Buyer will take delivery of the Goods within 7 days of the Company giving it notice that the Goods are ready for delivery. Delivery of the Goods or performance of the Services will be made during the Company’s usual business hours.
7c: The Company will use reasonable endeavours to deliver or perform each of the Buyer’s orders for the Goods or Services within the time agreed when the Buyer places an order and, if no time is agreed, then within a reasonable time, but the time of delivery or performance will not be of the essence. If, despite those endeavours, the Company is unable for any reason to fulfil any delivery or performance on the specified date, the Company will be deemed not to be in breach of the Contract, nor (for the avoidance of doubt) will the Company have any liability to the Buyer for direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused (including as a result of negligence) by any delay or failure in delivery or performance except as set out in this condition.
7d: The Buyer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for loading the Goods.
7e: If the Buyer fails to take delivery of any of the Goods when they are ready for delivery or to provide any instructions, documents, licenses or authorisations required to enable the Goods to be delivered or Services to be performed on time (except solely on account of the Company’s default), the Goods or Services will be deemed to have been delivered or performed on the due date and (without prejudice to its other rights) the Company may:-
1) Store or arrange for storage of the Goods until actual delivery or sale in accordance with Condition 7b2 and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance) and/or:-
2) Following written notice to the Buyer, sell any of the Goods at the best price reasonable obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract or account to the Buyer for any excess achieved over the price under the Contract, in both cases having taken into account any charges related to the sale.
7f: Where the Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
8a: Risk of damage to or loss of the Goods will pass to the Buyer on delivery (or deemed delivery in accordance with Condition 7e to the Buyer or its agent or any carrier engaged by or on behalf of the Buyer.
8b: Ownership of the Goods will not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:-
1) The Goods, and
2) All other sums which are or which become due to the Company from the Buyer on any account.
8c: Until ownership of the Goods has passed to the Buyer, the Buyer must:-
1) Hold the Goods on a fiduciary basis as the Company’s bailee.
2) Store the Goods (at no cost to the Company) separately from all other Goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property.
3) Not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods and
4) Maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company and will whenever requested by the Company produce a copy of the policy of insurance.
8d: The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:-
1) Any sale will be effected in the ordinary course of the Buyer’s business at full market value and the Buyer will account to the Company accordingly, and
2) Any such sale will be a sale of the Company’s property on the Buyer’s own behalf and the Buyer will deal as principal when making such a sale.
8e: The Buyer’s right to possessions of the Goods will terminate immediately if any of the circumstances set out in Condition 12a occur.
8f: The Company will be entitled to recover payment for the Goods notwithstanding that title in any of the Goods has not passed from the Company.
8g: The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
8h: Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer will be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
8j: On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this Condition 8 will remain in effect.
9a: The Company may agree for an additional charge to install and/or commission the Goods at the premises of the Buyer or elsewhere.
9b: In order that the Company can provide the Services under the Contract the Buyer shall:
1) Grant to the Company such access to the Buyer’s premises and personnel and make such facilities available as the Company shall from time to time reasonably require in order to perform the Services.
2) Take all such precautions as are necessary to protect the health and safety of the Company’s employees, agents and sub-contractors while on the Buyer’s premises.
3) Supply to the Company any documentation or other information necessary for the Company to perform the Services.
4) Indemnify the Company against any loss or damage caused to the Company (including any liability which the Company may incur to any other person) during or as a result of or in connection with the Services.
9c: Notwithstanding that the company is providing the Services and Goods shall continue to be treated as delivered to the Buyer in accordance with Condition 7.
10a: The Company will, free of charge, within a period of 12 months from the date of delivery of Goods or performance of Services which are proved to the reasonable satisfaction of the Company to be damaged or defective due to defects in material workmanship or design (other than a design made, furnished or specified by the Buyer), repair, or at its option replace, such Goods that are returned to the Company or re-perform such Services. This obligation will not apply where:-
1) The Goods have been improperly altered in any way whatsoever, or have been subject to misuse or unauthorised repair.
2) The Goods have been improperly installed or connected by or on behalf of the Buyer.
3) Any maintenance requirements relating to the Goods have not been complied with in all respects.
4) Any instructions as to use and storage of the Goods have not been complied with in all respects.
5) The Products handled by the Goods are not identical in configuration, weight, quality and condition to the samples, items and/or materials provided by the Buyer prior to the manufacture and assembly of the Goods or are not free from burr or flash or are adulterated with dirt, grease or other debris.
Buyer has failed to notify the Company of any defect or suspected defect within
14 days of delivery where the defect should be apparent on reasonable
inspection, or within 14 days of the same coming to the knowledge of the Buyer
where the defect is not one which should be apparent on reasonable inspection,
and in any event, no later than 12 months from the date of delivery or
7) The Goods have been used during the period referred to in Condition 10a for more than 10 hours per day and 6 days per week.
10b: The guarantee set out in Condition 10a does not extend to parts, materials or equipment not manufactured by the Company in respect of which the Buyer shall only be entitled to the benefit of any guarantee given by the manufacturer to the Company.
10c: The Company will refund to the Buyer the cost of carriage on the return of any such defective or damaged Goods and will deliver any repaired or replacement Goods to the Buyer at the Company’s own expense.
10d: Any Goods which have been replaced will belong to the Company. Any repaired or replacement Goods will be liable to repair or replacement under the terms specified in Condition 10a for the unexpired portion of the 12 month period from the original date of delivery of the Goods.
10e: In the event of any breach of any of the Company’s express obligations under these Conditions above the remedies of the Buyer will be limited to damages.
10f: The Company does not exclude its liability (if any) to the Buyer:-
1) For breach of the Company’s obligations arising under Section 12 of the Sale of Goods Act 1979 or Section 2 of the Sale & Supply of Goods & Services Act 1982.
2) For personal injury or death resulting from the Company’s negligence.
3) Under Section 2(3) of the Consumer Protection Act 1987.
4) For any matter which it would be illegal for the Company to exclude or to attempt to exclude its liability, or
5) For fraud.
10g: Except as provided in Conditions 10, 1-6 the Company will be under no liability to the Buyer whatsoever (whether in contract, tort (including negligence, breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with:-
1) Any of the Goods or the manufacture or sale or supply, or failure or delay in supply, of the Goods by the Company or on the part of the Company’s employees, agents or sub-contractors.
2) Any breach by the Company of any of the express or implied terms of the Contract.
3) Any use made or resale by the Buyer of any of the Goods, or any produce incorporating any of the Goods.
4) The suitability or accuracy of any Goods designed or manufactured to a specification supplied by the Buyer.
5) Any statement made or not made, or advice given or not given, by or on behalf of the Company.
6) Any of the Services or failure or delay in performing the Services by the Company or on the part of the Company’s employees agents or sub-contractors.
7) Any failure in performance or low productivity of the Goods caused by the Buyer using components or items or materials which are not identical in configuration, weight, quality and condition to the samples of components items or materials provided by the Buyer prior to the manufacture and assembly of the Goods or are not free from burr or flash or are adulterated with dirt, grease or other debris.
10j: Except as set out in Conditions 1 – 6 the Company hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Buyer.
10k: In the event that notwithstanding the foregoing provisions of these Conditions the Company is found liable for any loss or damage suffered by the Buyer then (other than as provided for in Condition 10f) that liability shall in no event exceed the price of the Goods or Services giving rise to the claim.
10m: Each of the Company’s employees, agents and sub-contractors may rely upon and enforce the exclusions and restrictions of liability in Condition 10e to 10h in that person’s own name and for that person’s own benefit, as if the words “its employees, agents and sub-contractors” followed the word “Company” wherever it appears in those clauses.
10n: The Buyer acknowledges that the above provisions of this Condition 10 are reasonable and reflected in the price which be higher without those provisions, and the Buyer will accept such risk and/or insure accordingly.
11. Force Majeure
11a: The Company will be deemed not to be in breach of the Contract or otherwise liable to the Buyer in any manner whatsoever for any failure or delay in performing its obligations under the Contract due to Force Majeure, provided that it has and continued to comply with its obligations set out in Condition 11b.
11b: If the Company’s performance of its obligations under the Contract is affected by Force Majeure:-
1) It will give written notice to the Buyer, specifying the nature and extent of the Force Majeure, as soon as reasonably practicable after becoming aware of the Force Majeure and will at all times use all reasonable endeavours to bring the Force Majeure event to an end and, whilst the Force Majeure in continuing, mitigate its severity.
2) Subject to the provisions of Condition 11c the date for performance of such obligation will be deemed suspended only for a period equal to the delay caused by such an event and
3) It will not be entitled to payment from the Buyer in respect of extra costs and expenses incurred by virtue of the Force Majeure.
11c: If the Force Majeure in question continues for more than three months, either the Company or the Buyer may give written notice to the other to terminate the Contract. The notice to terminate must specify the termination date, which must not be less than 15 days after the date on which the notice is given, and once such notice has been validly given, the Contract will terminate on that termination date.
12a: The Company may by notice in writing served on the Buyer terminate the Contract forthwith if the Buyer:-
1) Is in material breach of any of the terms of the Contract and, where the breach is capable of remedy, the Buyer fails to remedy such breach within 30 days service of a written notice from the Company, specifying the breach and requiring it to be remedied. Failure to pay any sums due in accordance with Condition 5a is a material breach of the terms of the Contract which is not capable of remedy.
2) Makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) has a receiver, manager or administrative receiver appointed over its assets or becomes subject to an administration order or goes into liquidation or suffers any other form of insolvency proceedings.
3) Has any distraint, execution or other process levied or enforced on any of its property.
4) Ceases to trade or appears in the reasonable opinion of the Company likely or is threatening to cease to trade.
5) The equivalent of any of the above occurs to the Buyer under the jurisdiction to which the Buyer is subject or the Company reasonably anticipates that one of the above set of circumstances is about to occur.
12b: The termination of the Contract howsoever arising is without prejudice to the rights, duties and liabilities of either the Buyer or the Company accrued prior to termination and the conditions which expressly or impliedly have affect after termination will continue to be enforceable notwithstanding termination.
12c: The Company will be entitled to suspend any deliveries or performance otherwise due to occur following service of a notice specifying a breach under Condition 12a 1 until either the breach is remedied or the Contract terminates, whichever occurs first.
13. Intellectual Property
13a: Any moulds, dies, tools, jigs, or other special apparatus necessary for the production of the Goods shall be and remain the Company’s property. The Company may retain such items for such periods as the Company considers reasonable.
13b: All drawings, plans, designs, specifications, samples, information and other technical data of or in relation to the Goods and the Services and all copyright and other intellectual property rights therein are and shall remain the property of the Company.
13c: No right or licence is granted to the Buyer in respect of any intellectual property rights of the Company, except the right to use the Goods in the Buyer’s ordinary course of business.
13d: The Buyer will not without the Company’s prior written consent allow any trade marks of the Company or other words or marks applied to the Goods to be obliterated, obscured or omitted nor add any additional marks or words.
13e: Where Goods are supplied to the specification of the Buyer or the Company has used in the process of manufacture any drawings or designs supplied by the Buyer, the Buyer will indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with any claim made against the Company that the Goods infringe or that their use or sale infringes the patent, copyright, design, trade mark or other intellectual property rights of any other person.
14a: The Buyer will keep confidential any and all confidential information that it may acquire.
14b: The Buyer will not use the confidential information for any purpose other than to perform its obligations under the Contract. The Buyer will ensure that its officers and employees comply with the provision of this Condition 14.
14c: The obligations on the Buyer set out in Condition 14a and 14b will not apply to any information which:-
1) Is publicly available or becomes publicly available through no act or omission of the Buyer or
2) The Buyer is required to disclose by order of a Court of competent jurisdiction.
15a: Time for performance of all obligations of the Buyer under the Contract is of the essence.
15b: Time for performance of all obligations of the Company under the Contract is not and may not be made by notice, of the essence.
15c: Each right or remedy of the Company under any Contract is without prejudice to any other right or remedy of the Company under this or any other Contract.
15d: If any condition or part of the Contract is found by any Court, Tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Contract and will be ineffective without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provision of the Contract which will remain in full force and effect.
15e: No failure or delay by the Company to exercise any right, power or remedy will operate as a waiver of it, nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
15e: The Company may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under the Contract.
15f: The Contract is personal to the Buyer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without the Company’s prior written consent.
15g: Save as set out in Condition 10, the Company and the Buyer do not intend that any of the terms of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to the Contract.
15h: The Contract contains all the terms which the Company and the Buyer have agreed in relation to the Goods and Services and supersedes any prior written or oral agreements, to the Goods and Services and supersedes any prior written or oral agreements, representations or understandings between the parties relating to such Goods and Services. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
16a: Any notice or demand in connection with the Contract will be in writing and may be delivered by hand, first-class post or email (but not by facsimilie) addressed to the recipient at its registered office or its usual business address or usual business email address as the case may be (or such other address as has been notified in writing as being the appropriate address for service of notices).
16b: The notice or demand will be deemed to have been duly served:-
1) If delivered by hand, at the time of delivery.
2) If delivered by first-class post, 48 hours after being posted or in the case of Airmail, 14 days after being posted.
3) If delivered by email, at the time of transmission receipt.
The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any term of the Contract or these Conditions will be governed by English law. The English Courts will have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Contract or these Conditions. The Company and the Buyer agree to submit to that jurisdiction.
Revised: January 2023 ©Proweight Limited