Terms and Conditions

Terms and Conditions

BW INDUSTRIES LIMITED TERMS AND CONDITIONS OF SALE ("Conditions")
The customer's attention is in particular drawn to the provisions of condition 14.4.
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this condition apply in these Conditions.
Company: BW® Industries Limited, Carnaby Industrial Estate, Lancaster Road, Carnaby, Bridlington, East Yorkshire, YO15 3QY
(Company Number 1189095);
Contract: any contract between the Company and the Customer for the sale and purchase of the Goods, incorporating these
Conditions;
Customer: the person, firm or company who purchases the Goods from the Company;
Delivery Point: the place where delivery of the Goods is to take place under condition 4;
Goods: any goods agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them);
Non Prime: Goods that are in their actual state, as seen, without warranty and with all faults whether or not such Goods have been
inspected prior to delivery; and
Working Day: any day of the week excluding Saturdays, Sundays and Bank or Public Holidays.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension,
application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these Conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 the Contract shall be on these Conditions to the exclusion of all other terms and
conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order,
specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Customer's purchase order, confirmation of order,
specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company's sales and any variation to these Conditions and any representations about the
Goods shall have no effect unless expressly agreed in writing and signed by a Director of the Company. The Customer 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. Nothing in this condition shall exclude or limit the Company's liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Customer from the Company shall be deemed to be an offer by the
Customer to buy Goods subject to these Conditions.
2.5 No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is
issued by the Company or (if earlier) the Company delivers the Goods to the Customer.
2.6 The Customer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an
acknowledgement of order to the Customer. Any quotation is valid for a period of 30 days only from its date unless otherwise stated in
writing and provided that the Company has not previously withdrawn it.
3. DESCRIPTION
3.1 The quantity and description of the Goods shall be as set out in the Company's quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or
illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an
approximate idea of the Goods described in them. Unless otherwise agreed in writing, they shall not form part of the Contract and this
is not a sale by sample.
4. DELIVERY
4.1 Unless otherwise agreed in writing by the Company and subject to condition 8, delivery of the Goods shall take place at the
Customer's place of business.
4.2 The Customer shall take delivery of the Goods immediately where delivery is at the Customer's place of business or at another
site of delivery requested by the Customer. In circumstances where delivery is at the Company's place of business the Customer
shall take delivery of the Goods within 10Working Days of the Company giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be
made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.4 Subject to the other provisions of these Conditions the Company shall not be liable for any 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
similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if
caused by the Company's negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such
delay exceeds 180 days.
4.5 If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is
unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or
authorisations:
(a) risk in the Goods shall pass to the Customer (including for loss or damage caused by the Company's negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) the Company may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses
(including, without limitation, storage and insurance).
4.6 If requested by the Company the Customer shall provide at the Delivery Point and at its expense adequate and appropriate
equipment and manual labour for loading or unloading the Goods.
4.7 If the Company delivers to the Customer a quantity of Goods of up to 5% more or less than the quantity accepted by the
Company the Customer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and
shall pay for such Goods at the pro rata Contract rate.
4.8 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in
accordance with the provisions of the Contract.
4.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment
shall entitle the Customer to repudiate or cancel any other Contract or instalment.
5. NON-DELIVERY
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company's place of business
shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive
evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company's negligence) unless the
Customer gives written notice to the Company of the non-delivery within 10 Working Days of the date when the Goods would in the
ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or
issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6. SITE ACCESS
6.1 Where the Goods are to be delivered to the Customer's premises or another site specified by the Customer the Customer
warrants that:
(a) there will be a safe, suitable and unrestricted hard access route for the Company's and/or the Company's sub-contractors'
vehicles including but not limited to long articulated haulage vehicles and cranage vehicles both on to and off the site and to a position
immediately adjacent to the location of delivery or installation;
(b) there is sufficient ground bearing capacity to accept the full weight of the Company's fully loaded haulage and/or cranage
vehicles;
(c) the site is level, free of obstructions including but not limited to underground and overhead obstructions and of a sufficient ground
bearing capacity to accept the full load of the Goods;
(d) the site is safe and meets all industry safety standards; and
(e) it shall comply with condition 4.6, if so requested by the Company.
7. RISK/TITLE
7.1 The Goods are at the risk of the Customer from the time of delivery.
7.2 Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums
due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Customer on any account.
7.3 Until ownership of the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Company's bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that
they remain readily identifiable as the Company's property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to
the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company.
7.4 The Customer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Customer's business at full market value; and
(b) any such sale shall be a sale of the Company's property on the Customer's own behalf and the Customer shall deal as principal
when making such a sale.
7.5 The Customer's right to possession of the Goods shall terminate immediately if:
(a) the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise
takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate)
convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a
solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator
or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of
an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a
qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or
a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the
Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
(b) the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against
him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the
Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade;
or
(c) the Customer encumbers or in any way charges any of the Goods.
7.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not
passed from the Company.
7.7 The Customer 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 Customer's right to possession has terminated, to recover them.
7.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Customer's right to
possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Company to the Customer in
the order in which they were invoiced to the Customer.
7.9 On termination of the Contract, howsoever caused, the Company's (but not the Customer's) rights contained in this condition 7
shall remain in effect.
8. EXPORT TERMS
8.1 Where the Goods are supplied for delivery outside the United Kingdom the provisions of this condition 8 shall apply
notwithstanding the other provisions of these Conditions.
8.2 The Customer is responsible for complying with any legislation or regulations governing the importation, use or sale of the Goods
in the country of destination, the payment of any duties or taxes on them, the transportation, carriage and storage of the Goods
including without limitation any obligation to translate any instructions, labelling or packaging into another language.
8.3 The Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
8.4 For the avoidance of doubt the Customer shall be responsible for the unloading of Goods.
9. PRICE
9.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company's quotation.
9.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading,
unloading, carriage and insurance, all of which amounts the Customer shall pay in addition when it is due to pay for the Goods.
10. PAYMENT
10.1 Subject to condition 10.4 and unless otherwise agreed in writing, payment of the price for the Goods is due in pounds sterling
within 28 days of the date of invoice.
10.2 Time for payment shall be of the essence.
10.3No payment shall be deemed to have been received until the Company has received cleared funds.
10.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other
provision.
10.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off,
counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such
deduction to be paid by the Company to the Customer.
10.6 If the Customer fails to pay the Company any sum due pursuant to the Contract, the Customer shall be liable to pay interest to
the Company on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of
HSBC Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the
right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
11. QUALITY
11.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Customer the benefit
of any warranty or guarantee given to the Company.
11.2 The Company warrants that (subject to the other provisions of these Conditions) upon delivery the Goods shall:
(a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
(b) unless the Goods were produced in accordance with the Customer's design, drawing, specification or other data or information,
be reasonably fit for purpose; and
(c) unless the Goods were produced in accordance with the Customer's design, drawing, specification or other data or information or
in accordance with condition 12.2, be reasonably fit for any particular purpose for which the Goods are being bought if the Customer
had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the
Customer to rely on the skill and judgement of the Company.
11.3 The Company shall not be liable for a breach of any of the warranties in condition 11.2 unless:
(a) the Customer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier,
within 10Working Days of the time when the Customer discovers or ought to have discovered the defect; and
(b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to
do so by the Company) returns such Goods to the Company's place of business at the Company's cost for the examination to take
place there.
11.4 The Company shall not be liable for a breach of any of the warranties in condition 11.2 if:
(a) the Customer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Customer failed to follow the Company's oral or written instructions as to the storage, installation,
commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Customer alters or repairs such Goods without the written consent of the Company.
11.5 Subject to conditions 11.3 and 11.4, if any of the Goods do not conform with the warranties set out in conditions 11.2 the
Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata
Contract rate provided that in the case of Goods, if the Company so requests, the Customer shall, at the Company's expense, return
the Goods or the part of such Goods which is defective to the Company.
11.6 If the Company complies with condition 11.5 it shall have no further liability for a breach of any of the warranties in condition
11.2 in respect of such Goods.
11.7 The provisions of this condition 11 do not apply to Non Prime Goods supplied to the Customer under this Contract.
12. SPECIAL DESIGNS AND SPECIFICATIONS
12.1 If the Company accepts an order from the Customer to produce Goods in accordance with designs, drawings or specifications
prepared by the Company to meet the Customer's specific requirements it shall be deemed that by placing the order the Customer
has consented to the use of and approved the designs, drawings or specifications.
12.2 The Company warrants that such Goods manufactured or supplied by the Company under condition 12.1 above will be
produced in accordance with any agreed design, drawing or specification but are not warranted to be fit for any particular purpose.
12.3 The Customer acknowledges that all intellectual property rights in Goods which have been specially designed under condition
12.1 including copyright, design rights and other rights of an intellectual property nature are in the sole ownership of the Company and
that no rights of such nature are granted to the Customer under this Contract. Nothing in these Conditions shall be construed as
granting or conferring any rights by licence or otherwise, expressly or impliedly prior to or after the date of this Contract.
12.4 The Customer shall be solely responsible for the accuracy of any designs, drawings or specifications or other data or
information supplied to the Company by the Customer, its employees, agents or sub-contractors.
12.5 The Customer irrevocably and unconditionally agrees to indemnify the Company in full and on demand and keep it so
indemnified against all claims, demands, actions, proceedings and all damages, losses, costs and expenses whether direct or indirect
made against or incurred or suffered by the Company whether wholly or in part resulting from the following matters:
(a) the manufacture, supply and sale of the Goods by the Company in accordance with the Customer's designs, drawings,
specifications or other data or information provided by the Customer, its employees, agents or sub-contractors; or
(b) any claims that the intellectual property rights of any third party have been infringed through manufacture, sale or use of the
Goods (save to the extent the same have been supplied in accordance with designs, drawings, specifications or other data or
information of the Company).
13. NON PRIME GOODS
13.1 Where the Company specifies that the Goods are sold as Non Prime Goods the Company will be under no obligation to replace
or make good such Non Prime Goods.
13.2 The Customer irrevocably and unconditionally agrees to indemnify the Company in full and on demand and keep it so
indemnified against all claims, demands, actions, proceedings and all damages, losses, costs and expenses whether direct or indirect
made against or incurred or suffered by the Company whether wholly or in part resulting from the resale of the Non Prime Goods by
the Customer.
14. LIMITATION OF LIABILITY
14.1 Subject to conditions 4, 5 and 11, the following provisions set out the entire financial liability of the Company (including any
liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of these Conditions;
(b) any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
14.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the
Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
14.3 Nothing in these Conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company's negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
14.4 Subject to condition 14.2 and condition 14.3:
(a) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or
otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract
price; and
(b) the Company shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill
or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever
(howsoever caused) which arise out of or in connection with the Contract.
15. ASSIGNMENT
15.1 The Company may assign the Contract or any part of it to any person, firm or company.
15.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
16. TERMINATION
16.1 The Company shall have the right at any time and for any reason to immediately terminate the Contract in whole or in part by
giving the Customer written notice, whereupon all work on the Contract shall be discontinued without liability to the Company if:
(a) the Customer commits a material breach of any of the terms and Conditions of the Contract; or
(b) any distress, execution or other process is levied upon any of the assets of the Customer; or
(c) the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise
takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate)
convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a
solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or
administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an
administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a
qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or
a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the
Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
(d) the Customer ceases or threatens to cease to carry on its business; or
(e) the financial position of the Customer deteriorates to such an extent that in the opinion of the Company the capability of the
Customer to adequately fulfil its payment obligations under the Contract has been placed in jeopardy.
16.2 The termination of the Contract, however arising, shall be without prejudice to the rights and duties of the Company accrued prior
to termination. The Conditions which expressly or impliedly have effect after termination shall continue to be enforceable
notwithstanding termination.
17. FORCE MAJEURE
The Company reserves the right to defer the date of delivery of the Goods or to cancel the Contract or reduce the volume of the
Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business
due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions,
war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other
labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in
obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess
of 3 months, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
18. COMMUNICATIONS
18.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first
class post or sent by fax or electronic mail:
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer
by the Company or, in the case of faxes or electronic mail, to the fax number or electronic mail address notified to the Customer by
the Company from time to time; or
(b) (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other
case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be
notified to the Company by the Customer or, in the case of faxes or electronic mail, to the fax number or electronic mail address
notified to the Company by the Customer from time to time.
18.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive
of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax or electronic mail on a Working Day prior to 4.00 pm, at the time of transmission and otherwise on the next Working
Day.
18.3 Communications addressed to the Company shall be marked for the attention of a Director of the Company.
19. GENERAL
19.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company
whether under the Contract or not.
19.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or
partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness,
voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the
remainder of such provision shall continue in full force and effect.
19.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a
waiver of any of its rights under the Contract.
19.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be
deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
19.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of
Third Parties) Act 1999 by any person that is not a party to it.
19.6 The Customer shall keep itself adequately insured against its potential liabilities under this Contract.
19.7 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law
and the parties submit to the exclusive jurisdiction of the English courts.

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