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Terms and Conditions - Terms of Sale

1.​Definitions

1.1 “Buyer” means the party who buys or agrees to buy the goods from the seller.

1.2 “Conditions” means the terms and conditions set out in this document and any special terms and conditions agreed in writing by the seller.

1.3 “Delivery Date” means the date specified by the Seller when the goods are to be delivered.

1.4 “Goods” means the articles which the Buyer agrees to buy from the Seller.

1.5 “Price” means the price for the Goods excluding carriage, packing, insurance and VAT.

1.6 “Seller” means Omond-Tong Consultancy Ltd or O-TC Ltd. 6 Simons Close, Donington on Bain, Louth, Lincolnshire, LN11 9TX United Kingdom.

 

2. Conditions applicable

2.1 These conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other term and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document or otherwise.

2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these conditions.

2.3 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these conditions.

2.4 Any variation of these conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless in writing by the Seller.

 

3. The Price and Payment

3.1 The Price of the Goods shall be the price stipulated in the Seller’s published price list current at the date of delivery of the Goods. The price is the Seller’s ex-works price but where the Seller agrees to arrange for the Goods to be sent to the Buyer the Buyer shall also be responsible for the cost of loading carriage insurance and unloading. The Price is exclusive of VAT which shall be paid by the Buyer at the rate ruling on the date of the seller’s invoice. Where the Seller is required to account to the relevant authority in respect of any additional duty, VAT, other tax or surcharge in relation to the sale of the Goods, the same will be added to the price for payment by the Buyer.

3.2 Subject to sub-clause 3.3 payment of the Price, VAT etc. shall be due within 30 days of the date of the Seller’s invoice.

3.3 Unless otherwise stated where the Goods comprise of Capital Investment Projects, Electrical Projects or Turnkey Packages. The Buyer shall pay forty percent of the Price upon placing its Order with the Seller, then the final 60 percent upon completion and signing off of the goods/project, unless otherwise stated on the quotation. For the purpose of this sub-clause the Price shall be deemed to include not only the Seller’s ex-works price but also all and any further costs, VAT or other sum due as specified in sub-clause 3.1 above.

3.4 In all cases time for payment shall be of the essence.

3.5 Interest on overdue sums or overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 3% above the base lending rate of the Seller’s clearing bank.

3.6 If the Buyer fails to make any payment on the due date, then without prejudice to any if the Seller’s other rights the Seller may suspend or cancel deliveries of any articles due to the Buyer and/or appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract with the Buyer) as the Seller may in its sole discretion think fit.

 

4. Goods

The quantity and description of the Goods shall be set out in the Seller’s acceptance of the buyer’s order.

 

5. Warranties and liability

The Seller warrants that the Goods will correspond at the time of delivery to the description given by the Seller. All other terms, conditions and warranties (whether implied or madeexpressly) whether by the Seller or its servants or agent or otherwise (other than any express warranties set out in the Seller’s acceptance of the Buyer’s order) relating to the quality and/or fitness for the purpose of the Goods or any of the Goods are excluded.

 

6. Delivery of the Goods

6.1 Delivery of the Goods shall be at the Seller’s address (or such address to be notified by the Seller to the Buyer) on the Delivery date unless the Seller agrees to deliver the Goods to the Buyer’s address on the Delivery Date. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.

6.2 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly, in full or at all.

6.3 Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within 4 months of the Delivery Date.

6.4 No claim for non-delivery of the Goods will be accepted by the Seller unless written notice of same, is received by the Seller within 10 days of the date of the Sellers invoice. No claim for damaged Goods or shortages will be accepted by the Seller unless written notice of same, is received by the Seller within 48 hours of delivery.

 

7. Acceptance of Goods

7.1 Subject to sub-clause 6.4 above the Buyer shall be deemed to have accepted the Goods 48 hours after delivery to the Buyer.

7.2 After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the contract,

7.3 If the Buyer properly rejects any of the Goods which are not in accordance with the contract the Buyer shall nonetheless pay the full Price for such Goods unless the Buyer properly gives notice of the rejection to the seller and at the Buyer’s cost returns such Goods to the Seller before the date when payment of the Price is due.

7.4 No Goods delivered to the Buyer which are in accordance with the contract will be accepted for return without the prior written approval of the Seller and on terms to be determined at the absolute discretion of the Seller. If the seller agrees to accept such Goods for return the Buyer shall be liable to pay a handling charge of 25% of the invoice price. Such Goods must be returned by the Buyer carriage paid to the Seller in their original packaging, goods returned without prior written approval of the Seller may at the Seller’s absolute discretion be returned to the Buyer or stored at the Buyer’s cost without prejudice to any rights or remedies the Seller may have.

 

8. Title and risk

8.1 The Goods shall be at the Buyer’s risk as from delivery.

8.2 In spite of delivery having been made property in Goods shall not pass from Seller until the Buyer shall have paid the Price plus VAT etc. in full and no other sums whatever shall be due from the Buyer to the Seller.

8.3 Until Property in the Goods passes to the Buyer in accordance with clause 5.2 the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the seller) separately from all other Goods in possession and marked in such a way that they are clearly identified as the Seller’s property.

 

8.4 Notwithstanding that the Goods (or any of them) remain the property of the Seller 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 Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale or dealing, Until the property in the Goods passes from the seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.

8.5 The Seller shall be entitled to recover the Price (plus VAT etc) notwithstanding that property in any of the Goods has not passed from the Seller.

8.6 Until such time as property in the Goods passes from the seller the Buyer shall upon request deliver up to the seller such of the Goods as have not ceased to be in existence or re-sold. If the buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On the making of such a request the rights of the Buyer under clause8.4 shall cease.

8.7 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 seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.

8.8 The Buyer shall insure and keep insured the Goods to the full Price against “all risks” to the reasonable satisfaction of the Seller until the date that property in the Goods passes from the Seller, and shall whenever requested by the seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller. If the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.

8.9 The Buyer shall promptly deliver the 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 Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.

 

9. Intellectual Property

The Specification(s) and design(s) of the Goods (including the copyright, design right or other intellectual property in them) shall as between the Seller and the Buyer be the property of the Seller.

Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of the Seller then the Buyer warrants the use of those designs or specifications for the manufacture processing assembly or supply of the Goods shall not infringe the rights of any third party.

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10. Remedies of the Buyer

10.1 Wherever the Buyer accepts or has been deemed to have accepted any Goods the Seller shall have no liability whatever to the Buyer in respect of those Goods.

10.2 The seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of this contract.

10.3 In the event of any breach of the contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.

 

11. Insolvency or other default of the Buyer

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 upon any of the Buyer’s goods or fit the Buyer offers to make any arrangements with its creditors or commits an act of bankruptcy or if any petition in bankruptcy 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 or 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 analogous proceedings under foreign law all sums outstanding in respect of the Goods shall become payable immediately. The Seller may in its absolute discretion and without prejudice to any other rights which it may have suspend all future deliveries of Goods to the Buyer and/or terminate the contract without liability upon its part and/or exercise any of its rights pursuant to clause 8.

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12. Set-off and Counterclaim

The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have for any reason whatever.

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13. Cancellation by the Seller

The Seller may cancel this contract at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.

 

14. Force Majeure

Neither the Seller nor the Buyer shall be liable for any default due to the act of God, war, strike, lock-out, industrial action, fire, flood, drought, tempest or other event beyond the reasonable control of the Seller or the Buyer.

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15. Notices

Any notice required to be served pursuant to this contract shall be in writing and served by first class post or by hand on the Seller at its address (or such other address as the Seller may from time to time notify to the Buyer) and on the Buyer’s registered office of principal place of business.

 

16. Proper law of contract and jurisdiction

16.1 This contract is subject to the law of England and Wales.

16.2 All disputes arising out of this contract shall be subject to the exclusive jurisdiction of the Courts of England and Wales.