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Terms & Conditions
Conditions of sale
“the Seller” means Broanmain Limited
“the Purchaser” means the person firm or company to be supplied with the Goods by the Seller
“Goods” means the goods, materials and/or other items to be supplied pursuant to the Contract
“the Contract” means the contract of sale and purchase of certain goods made between the Seller and the Purchaser to which these Conditions shall apply and which shall include any order issued thereunder.
2. SCOPE – THESE CONDITIONS SHALL PREVAIL OVER ANY INCONSISTENT TERMS OR CONDITIONS REFERRED TO IN THE PURCHASER’S ORDER OR IN CORRESPONDENCE OR ELSEWHERE UNLESS SPECIFICALLY AGREED TO IN WRITING BY BOTH PARTIES AND ANY CONDITIONS OR STIPULATIONS TO THE CONTRARY ARE HEREBY EXCLUDED OR EXTINGUISHED.
Quotations by the Seller shall not constitute an offer and the Seller reserves the right to withdraw or amend the same at any time prior to acceptance of the Purchaser’s order. Any order for tooling must be accompanied by an order for production for at least the minimum quantity quoted for. We reserve the right to charge the equivalent to this amount if we have not been given a minimum order quantity production order within 4 months of sampling.
The prices payable for the Goods shall be those charged by the Seller at the time of despatch so that the Seller shall have the right at any time to revise quoted prices to take account of increases in costs including (without limitation) costs of the acquisition of raw materials and of carriage. In this case the purchaser has the right to terminate the order on giving notice to the Seller of its intention within 7 days of being advised of the increase. The price is exclusive of any applicable value added tax, such value added tax the Purchaser shall be additionally liable to pay to the Seller. The prices payable for the goods shall be those charged by the Seller at the time of despatch and shall, unless otherwise agreed by the Seller in writing, include the cost of two/three days standard delivery.
5. TERMS OF PAYMENT
Subject to any special terms agreed in writing between the Purchaser and the Seller, the Seller shall be entitled to invoice the Purchaser for the price of the goods on or at any time after despatch of the Goods, unless the Goods are to be collected by the Purchaser or the Purchaser wrongly fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Purchaser for the price at any time after the Seller has notified the Purchaser that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods. The Purchaser shall pay the price of the Goods without deduction and set-off within 30 days of the date of the Seller’s invoice, unless by other prior written agreement, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Purchaser, except in the instances where mould tooling is manufactured, in this case two thirds pre-payment is required with order, the balance on approval of samples. For new accounts and for accounts who exceed these limits, terms may vary and will be expressly stated. The time of payment and the price shall be of the essence of the contract.
The Seller shall have the right to charge interest on overdue accounts at the rate of 5% above HSBC base rate from time to time to run from the due date for payment thereof until receipt by the Seller of the full amount whether before or after judgment.
6.1 Time not being of the essence of the Contract delivery dates mentioned in any quotation or elsewhere are approximate only and not of any contractual effect. Standard delivery lead times for moulded components under normal ongoing production circumstances would be 4 to 6 weeks from receipt of order unless otherwise agreed in writing. The Seller shall not be under any liability to the Purchaser in respect of any delay in delivery howsoever arising.
6.2 In the event of the Purchaser returning or failing to accept any delivery of the Goods in accordance with the Contract the Seller shall be entitled at his option either to deliver and invoice the Purchaser for the balance of Goods then remaining undelivered or to suspend or cancel further deliveries under the Contract.
The Seller shall be entitled to store at the risk of the Purchaser any Goods which the Purchaser refused or fails to accept and the Purchaser shall pay all costs of such storage and any additional costs of carriage incurred as a result of such refusal or failure.
6.3 Subject to the provisions of Clause 6.4 (where appropriate) the Goods shall unless delivered by the Seller’s own transport or by a carrier on behalf of the Seller be deemed to have been delivered and risk to have passed to the Purchaser upon their transfer to the carrier named by the Purchaser or (in case of delivery “ex works”) upon the Seller notifying the Purchaser that the Goods are available for collection.
6.4 In any case where Goods are sold CIF or FOB or on the basis of any other international trade term the meaning of such term contained in the International Chamber of Commerces Incoterms (1990) shall apply as if expressly incorporated herein except insofar as any part of the same may be inconsistent with any of the provisions contained in these Conditions.
6.5 In the case of any sale of Goods FOB the Seller shall be under no obligation to give to the Purchaser the notice specified in Section 32(3) of The Sale of Goods Act 1979.
6.6 In the case of the Contract or any order involving more than one delivery if default is made in payment on the due date the Seller shall have the right to suspend all or any further deliveries pending payment or to terminate the Contract in its entirety by notice in writing to the Purchaser.
Where third party deliveries are required, in addition to the agreed costs, there will be a 5% surcharge (of the order value) (minimum £50) for third party deliveries and admin.
7.1 Risk of damage to or loss of the Goods shall pass to the Purchaser:
(a) in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Purchaser that the Goods are available for collection; or
(b) in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery, or if the Purchaser wrongly 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 title to the Goods shall pass to the Purchaser upon payment in full of the invoice price and ownership of the Goods shall remain with the Seller 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 purchaser for which payment is then due. The Company’s rights are extended to any other products with which the Goods supplied by it have been mixed, or in which they have been incorporated.
Until such time as the property in the Goods passes to the Purchaser, the Purchaser shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Purchaser and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Purchaser shall be entitled to resell or use the Goods in the ordinary course of its 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 moneys or property of the Purchaser and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
If such payment is overdue in whole or in part the Seller may without prejudice to any of its other rights recover or resell the Goods or any of the Goods and may enter upon the premises of the Purchaser or any third party where the Goods are stored by its servants or agents for that purpose.
Such payments shall become due immediately upon the commencement of any act, claim, demand or proceeding in which the solvency of the Purchaser is involved as referred to in Clause 13.1. Where a tool has remained unused for over 10 years, it is the customer’s responsibility to reclaim the tool. The tool will be recycled in the event that it goes unclaimed.
The Seller shall be deemed to have fulfilled his contractual obligation in respect of any delivery not withstanding the fact of the quantity delivered being up to ten per cent more or less than the quantity specified in the Contract and in such event the Purchaser shall pay for the actual quantity delivered.
9. SPECIFICATIONS BY THE PURCHASER
9.1 The Purchaser shall indemnify and keep indemnified the Seller against all claims costs damages and expenses incurred by or for which the Seller may become liable as a result of the carrying out of any work required to be done on or to the Goods in accordance with the requirements or specifications of the Purchaser involving any infringement of any intellectual property right vested in another person firm or company.
9.2 The sale of Goods shall not by implication or otherwise convey any licence under any patent relating to the product or compositions thereof and the Purchaser expressly assumes all risks of patent infringement by reason of the Purchaser’s use or sale of the Goods singly or in combination with other materials or in any processing operation whatsoever.
9.3 The Purchaser warrants that any design or instructions furnished or given by him shall not be such as will cause the Seller to infringe any letters patent, registered design, trade mark or trade name in the execution of the Contract.
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 Suppliers specification, which do not materially affect their quality or performance.
10.1 THE PURCHASER’S ATTENTION IS DRAWN IN PARTICULAR TO THE WHOLE OF CLAUSE 10.
10.2 The Seller shall not be liable for any shortage in quantity delivered nor for any defect in the quality nature or condition of the Goods nor for the failure of the Goods to comply with any specification unless a claim in writing shall have been lodged with the seller by the Purchaser.
(a) In the case of shortage, within 30 days of delivery ; and (b) in the case of defects, within 30 days of delivery. In this respect the Purchaser is obliged to check the quality, safety and all other properties of the Goods and to hold the Seller harmless against any claims and in the event no such claim is lodged the Purchaser shall not be entitled to reject the Goods and the Purchaser shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
10.3 The Purchaser is obliged to check the goods on delivery and to indemnify and keep indemnified the Seller against any claims, demands or proceedings in respect of the quality and safety of the Goods in the possession of the Purchaser.
10.4 In the event of any shortage defect or failure notified by the seller as aforesaid the Seller shall make good the shortage and/or at the Seller’s sole discretion replace free of charge any Goods found to be defective by reason of faulty material or workmanship provided that as a condition thereof the Seller may require that the Goods concerned are returned to the Seller’s works carriage paid within one month of discovery of the defect.
10.5 Except in respect of death or personal injury caused by the negligence of the Seller (being negligence defined by Section 1 of the Unfair Contract Terms act 1977) the liability of the Seller to the Purchaser by reason of any representation implied warranty or other term or any duty under common law or under any contract for any consequential loss or damage (whether for loss of profit or otherwise) costs claims and expenses or for any other loss damage or injury whatsoever which may arise from the suitability of the Goods defective material faulty workmanship or otherwise shall in no case exceed the invoiced value of the Goods delivered from which the loss or damage arises.
Any information or recommendation by the Seller in relation to the Goods is given in good faith by the Seller shall not be liable to the Purchaser in respect of any loss or damage arising therefrom howsoever caused.
We expect our customers and their sub-contractors to have in place, adequate goods in inspection, and any defects of the components must be advised in writing within 30 days of delivery and prior to ANY assembly or re-work. In the event of non-payment we reserve the right to claim full payment from the principal customer.
The customer is liable for insurance of tools. Insurance of mould tools whilst in our care can be provided at a cost of £10 per £1000.00 of replacement tooling value (or part thereof) per annum on request.
12. LICENCES AND CONSENTS
If any licence or consent of any government or other authority shall be required for the purchase or importation of the Goods by the Purchaser the Purchaser shall obtain the same at its own expense and if necessary or so required produce evidence of the same to the Seller on demand.
13. FORCE MAJEURE – The Seller shall not be liable to the Purchaser or deemed to be in breach of contract by reason of any delay in performing, or any failure to perform, any of the sellers obligations in relation to the goods if the delay or failure was due to any cause beyond the sellers reasonable control.
14.1 This clause applies if
14.1.1 the Purchaser makes any voluntary arrangement with its creditors or becomes subject to any administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
14.1.2 an encumbrances takes possession, or a receiver is appointed, of any of the property or assets of the Purchaser; or
14.1.3 the Purchaser ceases, or threatens to cease, to carry on business; or
14.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly.
14.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Purchaser, and 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.
14.3 The Seller which by the Contract is understood to mean all Companies forming part of the same group of Companies as the Seller has the right to set-off any sums receivable from the Purchaser (which in this respect is also understood to mean all Companies forming part of the same group of Companies as the Purchaser) against any sums payable to the Purchaser.
15. WAIVER – The failure on the part of either party to the Contract to exercise or enforce any rights conferred by the Contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
16. NOTICES – Any notice required to be given hereunder in writing shall be deemed to have been duly given if sent by pre-paid first class post, telex or fax transmission addressed to the party concerned at its principal place of business or last known address. If the notice is sent by pre-paid first class post, it shall be deemed to be received two days after posting and if by facsimile or telex at the time of despatch.
17. HEADINGS – Headings to any of these Conditions are included to facilitate reference only and shall not affect the construction hereof.
18. SEVERABILITY – 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
19. GOVERNING LAW
The Contract shall be governed by and construed and interpreted in accordance with the laws of England and for the purpose of settlement of any disputes arising out of or in connection with the Contract the parties hereby submit themselves to the jurisdiction of the English Courts. The statutory regulations for implementation of the convention concluded at the Hague on 1 July 1974 relating to a uniform law on the international sale of Goods shall not be applicable to this Contract.
20. SET OFF – Seller, which in this respect is also understood to mean all companies forming part of the same group of companies as the Seller, has the right to set off any sums receivable from the Purchaser, which in this respect is also understood to mean all Companies forming part of the same group of companies as Purchaser, against any sums payable to Purchaser.
BROANMAIN LIMITED – APRIL 2012