1.                 Orders

1.1             These conditions shall apply to all quotations given and all orders accepted by Fleming & Co (Machinery) Limited (“the Company”) to the exclusion of any other conditions of the Buyer (including the Buyer’s standard conditions).  No statements made by any of the Company’s representatives will enlarge, vary or override any of these conditions.

1.2             The Buyer shall be responsible to the Company for the accuracy of any order.

2.                 Price

2.1             The price of the goods shall be the price in the Company’s quotation or, if different, in its acceptance of the Buyer’s order and is exclusive of value added tax and any other applicable taxes and delivery charges, except where otherwise stated.

2.2             All prices and rates contained in price lists issued by the Company are subject to variation without notice. All prices, estimates and quotations forming part of any order accepted by the Company shall be subject to revision if in the opinion of the Company increases in the cost of materials, labour, overhead expenses, packaging, transport rates or any similar matter render such action necessary.

3.                 Payment of the price

3.1             The Buyer shall pay all sums due to the Company for the goods not later than 30 days from the end of the month during which the invoice for those goods is raised.  The time of payment shall be a material term of the contract. The Buyer shall have no right of set off in respect of any claims which it may have against the Company.

3.2              The Company shall have the right to invoice the Buyer for the price of the goods:-

3.2.1       on delivery by the Company of the goods;

3.2.2       (where the goods are to be collected by the Buyer) at any time after the Company has notified the Buyer that the goods are ready for collection; or

3.2.3       (where the Buyer wrongfully fails to take delivery of any goods) at any time after the Company has attempted to deliver the goods.

3.3.           If the Buyer fails by the due date to pay any sum due under the invoice, the Company shall, pending any payment in full, have the right to:-

3.3.1       withhold deliveries of any goods to the Buyer;

3.3.2       cancel the order;

3.3.3       call for payment before delivery; and

3.3.4       charge interest on any sum overdue from the time that sum became due at the rate of 4 per cent above the Bank of Scotland base rate from time to time until payment in full.

4.                 Delivery and passing of risk

4.1             Delivery of goods shall either be made to the Buyer’s premises or, if some other place for delivery is agreed, the Company delivering the goods to that place. When goods are delivered to the Buyer’s premises it shall be the responsibility of the Buyer to ensure adequate vehicle access to the delivery point and to provide all necessary labour to off-load the goods.  If the Buyer fails to take delivery of the goods the Company may store the goods until actual delivery and the Buyer shall pay on demand all storage charges incurred by the Company.

4.2             Time shall not be of the essence of the contract and any dates quoted for delivery of the goods are approximate only. The Company shall not be liable for any delay in delivery of the goods howsoever caused.  The Company shall have the right to withhold delivery of goods if the Buyer is in default of this or any other contract with the Company.

4.3             Risk of loss of, or damage to, the goods shall pass to the Buyer on the earlier of the time of their delivery or the time at which the Buyer fails to take delivery of the goods.

5.                 Passing of property

5.1             Goods sold shall remain the property of the Company until all sums due to the Company have been paid. 

5.2             Until the transfer of the property the Buyer shall (a) store the goods in a manner which distinguishes them from other goods of the Buyer; and (b) (provided the goods are still in existence and have not been resold), the Company shall be entitled at any time to require the Buyer to deliver up the goods to the Company and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or of any third party where the goods are stored and repossess the goods subject to making good any damage thereby caused.

6.                 Warranties

            The Company warrants to the Buyer that the goods will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979 (as amended)) and fit for any purpose made known to the Company in writing at the time of the order and will comply with all statutory and EC requirements and regulations relating to the sale of the goods.

7.                 Notification of defects

7.1             Any claim by the Buyer which is based on any defect in the quality of the goods shall be notified to the Company within five working days of delivery.

7.2             Where the Company accepts any claim based on any defect in the quality of the goods the Company may require the Buyer forthwith to return the goods at the Company’s cost to a place designated by it and the Company shall (at its option) either replace the goods free of charge or credit the value of the defective goods to the Buyer’s account with the Company.

7.3             Except as set out in conditions 6 and 7, all conditions and warranties relating to the goods and all remedies otherwise available to the Buyer are excluded to the fullest extent permitted by law.  Nothing in this condition shall effect the Company’s liability under the Unfair Contract Terms Act 1977.

8.                  Limitation

            In any event the liability of the Company in respect of a loss suffered by the Buyer arising from any shortage, failure or defect in or otherwise in connection with the supply of goods by the Company shall be limited to the cost of making good any shortage, failure or defect or to the invoice value of the goods supplied or to be supplied by the Company to the Buyer.

9.                  Return of goods

            The return of goods specially purchased or specially manufactured by the Company and correctly supplied to the Buyer’s instructions will not be accepted nor will cancellation of orders for such goods be accepted.  Return of other goods correctly supplied to the Buyer’s instructions may be accepted at the Company’s discretion and where so accepted the Buyer will be liable to a re-stocking charge.  Return of any such goods which are not in an acceptable resale condition will not be accepted.

10.              Samples

            Samples can be supplied at the Buyer’s request and are charged as non-returnable.  Samples show only the general character of the goods without any warranty to their exact quality.

11.              Indemnity

            The Buyer shall indemnify and keep indemnified the Company in respect of any loss (including consequential loss) sustained and any expenses (including any legal expenses incurred) by the Company arising directly or indirectly out of the use of the goods by the Buyer including their resale, or the breach by the Buyer of these conditions.

12.             Termination

12.1         If the Buyer:-

12.1.1   is in default in respect of any contract with the Company; or

12.1.2   fails to pay any part of the price within seven days of the due date; or

12.1.3   becomes apparently insolvent in terms of the Bankruptcy (Scotland) Act 1985, or enters into a composition or arrangement with his creditors, or has an order for sequestration made against him, or passes a resolution for voluntary winding up (except for the purposes of reconstruction), or petitions for or has a liquidator, provisional liquidator, administrator or receiver appointed over the whole or any part of his property;

12.1.4   any equivalent event occurs in any jurisdiction other than Scotland; or

12.1.5   the Company reasonably apprehends that any of the above mentioned events is about to occur in relation to the Buyer and notifies the Buyer accordingly.

then the Company shall have the right immediately and without notice to terminate the contract.  In the event of such termination the Company shall be under no obligation to make any further deliveries, and payment in full for all goods delivered to the Buyer shall become due for immediate settlement.  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 and if the Buyer fails to pay the price the Company shall be entitled to immediate return of all the goods and the powers conferred in clause 5.2(b) shall apply.  This condition shall apply equally against the Buyer and any such trustee, receiver, liquidator or administrator of the Buyer referred to in clause 12.1.3.

12.2         Any termination by the Company under condition 12.1 shall be without prejudice to any rights which may have accrued before termination.

13.             Waiver and separation

13.1         Any failure by the Company to enforce any of the provisions of the contract with the Buyer shall not be a waiver of its right to enforce that provision.

13.2         If any of these conditions is held by any competent authority to be invalid the validity of any other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.

14.             Force Majeure

            The Company shall have no liability for a failure to perform any obligation under the contract with the Buyer caused or materially contributed to by any circumstances outside its control, including labour disputes, breakdown of equipment, failure or shortages of energy, water and other supplies.

15.             Interpretation and choice of law

            These conditions and the contract to which they apply shall be governed by the Law of Scotland.