“The Seller” means Powermark Limited (Registered No. 11988165) and any other Company that is an associated company of Powermark Europe Limited.
“The Purchaser” means any person, firm, company or corporation placing an order with the Seller
“The Goods” means items and services supplied by the seller to the Purchaser.
“The Goods” means items and services supplied by the seller to the Purchaser.
The contractual relationship between the Seller and the Purchaser shall be subject to these Standard Conditions of Sale (“the Conditions”) and no addition or variation shall apply unless agreed in writing. These Conditions supersede any prior representation whether made in writing or orally and these Conditions override any other terms that the Purchaser may subsequently seek to impose.
ADVERTISING MATERIALS & REPRESENTATIONS
Catalogues, specifications, brochures, price lists, advertising material and verbal representations by the Seller’s personnel are only an indication of the type of goods offered and no such particulars shall be binding on the Seller.
All goods are sold subject to availability to the Seller of material. The Seller reserves the right without notice to substitute materials, components and units other than those mentioned in the Contract. All specifications and drawings, or particulars of weights and dimensions and all forwarding specifications issued by the Seller are approximate only and do not form part of any contract.
Subject to the remaining sub-clauses of this clause, the Seller’s liability in respect of any defective goods manufactured or supplied by the Seller or for any loss or damage, consequential or otherwise, is limited to replacement of the goods which the customer proves are defective; and are defective or fail due to faulty material manufactured by the Seller or defective workmanship of the Seller; and failed or are found to be defective within a period of two calendar months after the Goods were delivered to the Purchaser.
The Seller may, at its option, give the Purchaser a credit in respect of the goods found to be defective of up to the full value of the price paid by the Purchaser.
The goods are sold on the condition that they will be used only in the prescribed manner and for the purpose for which they were intended.
The Purchaser must satisfy itself that the intended use of the goods is a use in the prescribed manner and in accordance with the Technical Data Sheet that refers to the prescribed use of the Goods and the purpose for which they were designed. In the event that the Purchaser is purchasing for onward sale the Purchaser must make known to its Customer the prescribed use of the Goods and the purpose for which they were designed.
The Seller shall not be liable for any damage, loss or injury resulting from any misuse of the goods or any use which is not in accordance with the prescribed manner or the purpose for which they were designed.
Where the Purchaser provides a specification of the goods to be manufactured by the Seller, the Seller shall not be liable for any defect in the goods caused by compliance with that specification.
If the Purchaser packages or causes the goods to be packaged in such a way so as to make the goods defective then the Purchaser shall indemnify the Seller against all damage and loss caused by reason of the product being defective.
The Seller has available information and product literature concerning the conditions necessary to ensure that the Goods supplied by the Seller will be safe and without risk to health when properly used. If the Purchaser is not already in possession of such literature or requires any information or advice in connection with the safe use of the Goods the Purchaser should immediately contact the Seller.
Nothing in these Conditions shall have the effect of excluding or limiting liability to a person for death, personal injury or damaged property due to defective product as defined in the Consumer Protection Act 1987.
In the case of goods supplied but not manufactured by the Seller, the liability of the Seller shall be limited to amounts recovered by the Seller under warranties given by the supplier to the Seller, provided that the Seller shall not be called upon to bear any liability or expense greater than the amount recovered from that supplier. Nothing herein shall impose any liability upon the Seller in respect of any loss, damage, consequential or otherwise, in relation to or arising out of goods found to be defective or attributable directly or indirectly to the acts, omissions, negligence or default of the Purchaser or the Purchaser’s servants or agents including (in particular but without prejudice to the generality of the foregoing) any failure by the Purchaser to comply with any recommendations of the Seller as to the handling and use of the goods.
If the Seller is held to be legally liable for any breach of this contract or shall become legally liable to the Purchaser in any way whatsoever the liability of the Seller in respect of any or all causes of action shall in no circumstances exceed the contract price.
Nothing in these Conditions shall have the effect of excluding or limiting liability for loss arising from death or personal injury resulting from the negligence of the Seller.
Delivery dates are not of the essence. They are merely estimated. Every effort will be made to meet the estimated delivery time. They cannot be guaranteed by the Seller who shall not be liable for any costs or damage caused by reason of any delay in delivery.
The Seller shall be under no liability to the Purchaser in respect of any damaged Goods delivered unless at the time of delivery the damage is endorsed in writing on the delivery note or the delivery note is endorsed “not examined” and a separate written notice of the damaged goods is sent to the Seller in writing within 14 days of delivery. The Purchaser must notify the Seller (and,if appropriate, the carrier) in writing of the non-receipt or shortage in delivery of any Goods by the Purchaser or his nominated carrier within 10 days of the sales date relating to any delivery.
The Purchaser shall hold the Seller indemnified against any loss or damage arising by the failure to give the notification of receipt or damaged Goods within the time limit specified above.
Any request by the Purchaser for proof of delivery from the Seller or the carrier must be made in writing no later than four months after the date of the invoice related to the delivery and in the absence of any such request in writing delivery of the goods shall be deemed conclusively to have been made.
If the Purchaser fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions then without prejudice to any other right or remedy available to the Seller, the Seller may elect to store the Goods until actual delivery and charge the Purchaser for the reasonable costs (including insurance) for storage and the Seller may sell the goods for a price readily obtainable and after deducting reasonable storage, insurance and selling expenses, charge the customer for any shortfall.
Risk shall pass to the Purchaser on the Goods being tendered for delivery at the Purchaser’s designated premises or (if earlier) on delivery to the carrier nominated by the Purchaser or (where the goods are to be collected by the Purchaser from the Seller) on being loaded onto the vehicle of the Purchaser or his agent. The Purchaser must insure the goods for their full replacement value against all risks with the interest of the Seller being noted on the policy (from the time that risk passes).
Where goods are stored by the Seller at the premises of the Purchaser in contemplation of ongoing sales (consignment), the goods are at the risk of the Purchaser.
RESERVATION OF TITLE
Until payment in full has been made by the Purchaser of all sums owing or due to the Seller, whether in respect of purchases of the Seller’s goods or otherwise, the following shall apply:-
All legal and equitable title to the goods shall remain with the Seller and the Purchaser shall be entitled to possession of the goods only as a bailee of the Seller.
The Purchaser shall have a licence to use the goods in the normal course of its business, provided always that to the extent that full payment as aforesaid shall not have been received by the Seller, the Purchaser shall hold on trust for the Seller any proceeds of sale of the goods and the benefit of all rights and claims under any contract for such sale.
The Purchaser shall at all times so far as is reasonably practicable store the goods in such a way that they are ascertainable as the separate property of the Seller.
The above licence may at any time be terminated forthwith by written notice given by the Seller if the Seller has any reason to have doubt as to the Purchaser’s solvency and in such event, the Seller shall be permitted to enter any premises of the Purchaser and repossess the goods.
Prices quoted are exclusive of Value Added Tax and are ex-works unless otherwise specified in writing.
Unless previously withdrawn, quotations are open for acceptance within the period stated in them. Where no period is stated, the quotation shall be open for acceptance for 30 days from the date it is dated unless withdrawn by the Seller during that time.
PAYMENT AND INTEREST
Payment shall be made by the Purchaser in accordance with the terms mutually agreed in writing. Time for payment shall always be of the essence of the contract.
If any payment is not made when due then the Purchaser shall pay interest on all overdue sums at the rate of 5% per annum above the base rate of National Westminster Bank plc from time to time and interest shall accrue at such rate after as well as before any judgement.
In the event of any late payment of any invoice the Seller reserves the right to defer delivery of any goods on any contract between the parties.
Where any invoice is overdue for payment then all invoices issued by the Seller to the Purchaser shall become immediately due for payment.
No deduction from any payment due shall be made by the Purchaser in respect of any set-off or counterclaim howsoever arising.
The Seller shall not be liable for any loss of damage caused by the non-performance or any delay in performance of any of its obligations hereunder arising out of any matter beyond the Seller’s control including but not limited to: acts of God; war; riots or civil commotion; strikes, lockouts or other trade disputes (whether or not involving employees of the Seller); fire; breakdown of machinery; transport delays or interruptions; Government restrictions or regulations; delay in delivery by the Seller’s suppliers.
In such circumstances, except where goods are in transport, either the Seller or the Purchaser may terminate the unperformed part of any contract by notice in writing delivered within 14 days of written notice being given by the Seller of the circumstances causing the non-performance or delay in performance provided always that the Purchaser’s obligation to pay in relation to any part of the contract which has been performed shall not be discharged.
If any order for goods is to be delivered by instalments, each instalment shall be treated as a separate contract each of which shall be paid for in accordance with clause 9 hereof and the Seller shall be entitled to withhold delivery of future instalments pending payment.
If the Purchaser:- fails to perform any of its obligations hereunder; fails to pay any payment on the due date or; is the subject of a bankruptcy petition or has an administrator or administrative receiver appointed over its business or undertaking or seeks an arrangement with its creditors or enters into liquidation whether compulsory or voluntary (save for the purpose of amalgamation or reconstruction of a solvent limited company) or ceases to trade or threatens to cease to trade or if the Seller has reason to have serious doubt as to the Purchaser’s solvency the Seller shall be entitled, without prejudice to its other rights under the contract, to suspend or cancel further performance of its contractual obligation.
When the Seller has accepted an order no cancellation in whole or in part can be made by the Purchaser without the Seller’s consent which will normally only be granted where the Seller can cancel relevant orders it has placed with its suppliers and on terms that a cancellation charge is paid by the Purchaser to cover all expenses, charges and the loss of profit by the Seller.
The Seller will retain information on the Buyer which it obtains from the Buyer, the Buyer’s Suppliers and credit reference agencies relating to, the ownership of the Buyer, the products which it purchases and the methods and time of payments (“Information”). It is agreed that The Seller may obtain from and disclose at any time and in its absolute discretion information to credit reference agencies and other suppliers or potential suppliers to the Buyer.
Other than when obliged by law the Purchaser shall not without the prior written consent of the Seller communicate to any person firm or company whatsoever the price paid for any goods or services or any of the methods of use of the goods or the details of any services or processes supplied by the Seller or any operating instructions or technical data relating thereto acquired from the Seller except to such employees as may be employed by the Purchaser to carry out those processes or use the goods.
RETURN OF PACKAGES
All return of goods under complaint are subject to authorisation from the seller following the complaint investigation and acceptance in writing or by email that the goods can be returned for credit against the justified complaint.
A charge may be made for returnable packages in which event full credit therefore will be given provided they are returned in good condition to the point of despatch, carriage paid and within 3 months of the sale or invoice date.
All notifications to be given by the Purchaser to the Seller referred to in these conditions must be in writing and sent by recorded delivery or email transmission. Unless the Purchaser can produce to the Seller if requested proof of such posting or transmission receipt of such, notice shall not be deemed to have occurred.
The Purchaser shall not without the Seller’s prior written consent assign or purport to assign or transfer to any other party any contract subject to these conditions.
These Conditions and any contract subject to these conditions shall be subject to the laws of, and the parties submit to the jurisdiction of the courts of, England and Wales