CONDITIONS OF SALE
1 Interpretation
1.1 In these Conditions:
"BUYER" 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 which the Seller is to supply in accordance with the Contract
"SELLER" means INSCALE LIMITED (registered in England under number 06662983)
"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 entered into between the Seller and the Buyer for the purchase and sale of Goods including any contract entered into as a consequence of the Seller accepting a purchase order received from the Buyer in respect of those Goods
"WRITING" includes email, 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 quotation of the Seller which is accepted by the Buyer, or any written 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 subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
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 verbal representations concerning the Goods (including representations as to specification, performance and/or usage) unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such verbal representation, and waives any claim that it may otherwise have if any such representation proves to be incorrect, save where such representation was subsequently confirmed by the Seller in Writing.
2.4 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 Notwithstanding the provisions of clause 2.1 above, no quotation issued by the Seller shall be treated as an offer to sell the Goods specified therein. All orders submitted by the Buyer to the Seller (including those submitted in consequence of, of following the receipt of, a quotation from the Seller) shall be treated as an offer by the Buyer to buy the Goods stated therein upon the terms of any prior quotation issued by the Seller. All such orders shall o nl y be deemed to h a v e b e e n accepted by the Seller when unconditionally accepted in writing by the Seller's authorised representative.
3.2 The Buyer shall be responsible for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer to the Seller, 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
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller's quotation (if accepted by the Buyer) or the 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 connection with or paid or agreed to be paid 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 specifications.
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 UK or EU 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 indemnify 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 such cancellation.
3.7 The Seller shall be entitled to cancel any Contract, without incurring any liability to the Buyer, in the event that prior to collection or delivery of the Goods it becomes aware of any information which leads the Seller to believe, in its discretion, that the supply of those Goods to the Buyer may be illegal, or in breach of or contrary to any trade sanctions which govern the Seller or the Buyer, or to which the Seller may voluntarily adhere or apply. In this respect the Seller hereby notifies the Buyer that the Seller adheres to the Indutrade Export Control and Trade Sanctions Policy , a copy of which can be provided upon request.
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 quoted price is no longer valid), the price listed in the Seller's price list current at the date of acceptance of the order by the Seller. Where the Goods are supplied for export from the United Kingdom, the Seller's export price list for the Buyer’s country shall apply. All prices quoted are valid for 30 days only after which time they shall automatically expire. The provisions of this clause are nevertheless subject to the provisions of clause 3.1 above regarding offer and acceptance.
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:
i. any increase in the cost to the Seller of manufacturing or supplying the Goods in question 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),
ii. any change in quantities or specifications for the Goods which is requested by the Buyer,
iii. any delay in the delivery date where such delay was at the request of, or arises as a consequence of any fault, error or inadequacy of, the Buyer, Inscale Limited Maidstone Road, Kingston, Milton Keynes, Bucks, MK10 0BD, United Kingdom Telephone: 01908 972660 VAT No: GB 936846676 E‐Mail: sales@inscale.co.uk @i l k Rev2 March 2023 Page | 2 of 4 Registered No: 06662983 (England) and where during the period of such delay the Seller’s prices increase due to any increase in raw material costs or other costs of manufacture or supply; or
iv. any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Unless otherwise agreed in Writing between the Buyer and the Seller, all prices quoted by the Seller are exclusive of VAT which shall be payable in addition. Such prices are also deemed to have been quoted on a ‘ex-works’ (Incoterms 2022) basis and shall therefore be deemed to exclude the cost of transportation, packaging, insurance, and any importation or exportation tariffs, duties or taxes which may be payable, Where the Seller agrees to deliver the Goods to the Buyer’s premises (or to some other premises specified by the Buyer), the Buyer shall be liable to pay all such additional charges, costs, tariffs, duties and taxes which may be applicable.
5 Terms of payment
5.1 Unless otherwise agreed by the Seller, payment for all Goods shall be made prior to collection or delivery of those Goods upon presentation of a proforma invoice from the Seller.
5.2 Where the Seller has agreed to afford credit terms to the Buyer:
5.3 the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery 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 .
5.4 the Buyer shall pay the price of the Goods within 30 days of the date of the Seller's invoice, unless otherwise agreed in writing by the Seller and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.
5.5 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:
5.6 cancel the Contract (insofar as any part of it remains to be completed by the Seller) or suspend any further deliveries to the Buyer (whether under the Contract in respect of which payment has not been made, or any other contract between the Buyer and the Seller;
5.7 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
5.8 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 2.5 per cent per month until payment in full is made, a part of a month being treated as a full month for the purpose of calculating interest.
5.9 Where the Seller has agreed to afford credit terms to the Buyer, the Seller shall be entitled to withdraw or vary those credit terms at any time, in its absolute discretion, by giving notice in writing to the Buyer.
6 Delivery
6.1 Unless otherwise agreed by the Seller, the Buyer shall be responsible for collecting the Goods from the Seller’s premises once the Seller has notified the Buyer that those Goods are available for collection.
6.2 Any dates quoted by the Seller as to when the Goods are anticipated to be ready for collection by, or will be delivered to, the Buyer are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. Where the Seller has agreed to deliver the Goods to the Buyer, the Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. Where Goods are to be collected by the Buyer, the Buyer shall arrange to collect the same within 14 days of being notified by the Seller that they are ready for collection.
6.3 If the Seller fails to deliver the Goods for any reason other than where that failure arises because of any cause beyond the Seller's reasonable control or because of the Buyer's default, and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the additional cost (if any) incurred by the Buyer in purchasing goods which are similar to the Goods (in the cheapest available market) to replace those not delivered over and above the price which the Buyer had agreed to pay for the Goods.
6.4 If the Buyer fails to collect the Goods within the time period specified in clause 6.2 , or fails to take delivery of the Goods when tendered for delivery, or fails to give the Seller adequate delivery instructions to enable delivery to take place 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:
6.4.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.4.2 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 (if any) over the price payable for the Goods under the Contract, or charge the Buyer for any shortfall
7 Risks 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 collected by the Buyer (or by a third party on the Buyer’s behalf) from the Seller’s premises, 14 days after the date on which the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered to the Buyer’s premises (or to some other premises which the Buyer and the Seller may have agreed), at the time of delivery to those premises or, if the Buyer wrongfully fails to take delivery of the Goods upon delivery being attempted, at the time when the Seller has tendered delivery of the Goods. For the purposes of clause 7.1.2 the Buyer shall be deemed to have wrongfully failed to take delivery where delivery has been attempted between the hours of 9am to 5pm Monday to Friday (unless that day is a public holiday in the place of delivery).
7.2 Notwithstanding delivery and the passing of risk in the Goods to the Buyer, or any others provisions of these Conditions, ownership of 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 ownership of 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 the Buyer’s business, but shall account to the Seller for the proceeds of sale (whether in monetary form or otherwise) and for any other amounts which the Buyer may receive in respect of the Goods, , including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties.
7.4 Until such time as ownership of 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 return the Goods to the Seller or to allow the Seller to collect the same from the Buyer, and if the Buyer fails to do so forthwith, the Seller shall be entitled to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. In the event that the Goods are attached to, or incorporated into, any larger item, the Seller shall also be entitled to detach the Goods from that larger item and shall not be responsible for any damage caused to that larger item whilst doing so provided the Seller exercised reasonable care in detaching the same.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security any of the Goods which remain under the ownership of the Rev2 March 2023 Page | 3 of 4 Registered No: 06662983 (England) 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 liability
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 the warranty period applicable to those Goods. Details of the warranty period applicable to the Goods and any specific terms and conditions relating to the warranty in respect of the Good can be found on the Seller’s website at www.inscale-scales.co.uk. Those terms and conditions are deemed to be incorporated into these Conditions.
8.2 The above warranty is given by the Seller but the Seller shall be under no liability in respect of:
8.2.1 any defect arising from any drawing, design or specification supplied by the Buyer;
8.2.2 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 on repair of the Goods without the Seller's approval;
8.3 The Buyer shall not be entitled to the benefit of 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;
8.4 For the avoidance of doubt 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 manufacturer to the Seller.
8.5 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 Consumer Rights Act 2015), all warranties, conditions or other terms implied by statute or common law (including but not limited to any warranties or conditions relating to satisfactory quality, compliance with description, specification and/or fitness for purpose) are excluded to the fullest extent permitted by law.
8.6 The statutory rights of a Buyer who deals with the Seller as a consumer are not affected by these Conditions.
8.7 Any claim by the Buyer based on any defect in the quality, condition or fitness for purpose 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 a reasonable time 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.
8.8 Where any valid claim in respect of any of the Goods based on any defect in the quality or condition of the Goods, their fitness for purpose, or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled at its discretion either to replace the Goods (or the part in question) free of charge, or to refund to the Buyer the price paid for the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.9 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 m i s representation, negligence of the Seller, its employers or agents or otherwise, or pursuant to any implied warranty, condition or other term, or arising under any duty at common law, or under the express terms of the Contract, for any indirect or consequential loss or damage suffered by the Buyer (including but not limited to loss of profit, loss of revenue, loss of contracts, damage to reputation or goodwill, or otherwise), or for any costs, expenses or other claims arising in connection with any such indirect or consequential loss, 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.
8.10 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 if the delay or failure was due to any cause beyond the Seller's reasonable control The following shall be regarded as causes beyond the Seller’s reasonable control:
8.10.1 Act of God, explosion, flood, tempest, fire or accident;
8.10.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.10.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of the governmental, parliamentary or local authority; 8.10.4 import or export regulations or embargoes;
8.10.5 strikes, lock-outs or other industrial actions or trade disputes whether involving employees of the Seller or of a third party ;
8.10.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.10.7 power failure or breakdown in machinery
8.10.8 to the Buyer shall not be entitled to return any Goods due to wrong ordering or any for any other reason where those Goods are not defective, unless the Seller consents in Writing. In the event that the Seller consents in Writing to the return of any Goods they shall be returned in original packaging and at the Buyers cost, and the Seller reserves the right to charge a 20% restocking fee plus charges to return the Goods to a saleable condition as if new.
9 Indemnity
9.1 All industrial or intellectual property rights in the Goods whether registered or not (including patent, copyright, design rights , trade mark, knowhow and confidential information) shall, as between the Seller and the Buyer, remain the sole property of the Seller and nothing herein shall be construed as granting the Buyer any rights in respect of the same.
9.2 Save in the circumstances set out in Condition 3.4 above, 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 or 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:
9.2.1 the Seller is given full control of any proceedings or negotiations in connection any such claim;
9.2.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.2.3 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.
9.2.4 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 or is entitled to recover any sums under any such policy or cover which the Buyer shall use its best endeavours to do;
9.2.5 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
9.2.6 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. Rev2 March 2023 Page | 4 of 4 Registered No: 06662983 (England)
10 Insolvency of 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 purposes 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 and notifies the Buyer accordingly.
10.1.5 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, and if the Goods have been delivered but not paid for the price shall became immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11 Export terms
11.1 In these Conditions "Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce in force at the date when the Contract is made. 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 provision of these Conditions.
11.3 The Buyer shall be responsible for complying with any legislation regulations or duties governing the importation of the Goods into the country of destination.
11.4 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered ex-works and the Seller shall be under no obligation to give notice under Section 32(3) of the Sale of Goods Act 1979.
11.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller' s premises before shipment if the Buyer so requires. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
11.6 Payment for the Goods shall be made by the Buyer in accordance with clause 5 or as agreed in writing by the Seller.
11.7 Amendment to documents at Buyer’s request may incur charges which Seller reserves the right to levy.
12 General
12.1 All notices under these Conditions shall be in Writing addressed to the Managing Director, President or Chief Executive Officer of other party at that other party’s registered office or principal place of business. Notices which are sent by fax or email shall be sent to such fax number or to such email address as the receiving party may specify for that purpose from time to time.
12.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 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.
12.4 Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of the Law Society, in accordance with their rules of the Law Society.
12.5 The Contract shall be governed by the laws of England and the parties shall submit to the exclusive jurisdiction of the courts of England. Nothing in this Condition shall prevent a party from enforcing any judgement or order of an English court via any court or other governmental or judicial authority elsewhere in the world. The parties shall be entitled to seek seeking any interim order or remedies via courts elsewhere in the world where it is appropriate to do so to safeguard that party’s position.