Sowlay Recycling Limited
TERMS AND CONDITIONS OF BUSINESS
Note: Some of these conditions exclude and/or limit liability
Last updated 1st December 2006
1. DEFINITIONS
1.1 In these Conditions:
"Buyer" means the person who contracts for the purchase of the Goods or supply of the Services from the Company;
"Company" means Solway Recycling Ltd;
"Conditions" means the terms and conditions 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 Company;
"Contract" means the agreement the Company and the Buyer for the purchase and sale of the Goods or provision of the Services of which these Conditions form part;
"Goods" means the Goods (including any instalment or part-consignment of the Goods) and whether manufactured by the Company, or supplied by the company, or subjected to the Services specified on the order form to which these Conditions are annexed;
"Services" means the collection, part-processing or recycling services provided or to be provided by the Company pursuant to the Contract.
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. OFFER AND ACCEPTANCE
2.1 The Company shall sell or supply and the Buyer shall purchase the Goods or Services in accordance with:
2.1.1 any written quotation of the Company which is accepted by the Buyer, or
2.1.2 with any written order of the Buyer which is accepted by the Company, subject in either case to confirmation in writing and to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions relied on by the Buyer.
2.2 No variation to these Conditions shall be of effect unless agreed in writing between the authorised representatives of the Buyer and the Company.
3. ORDERS AND SPECIFICATIONS
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Company unless and until confirmed in writing by the Company's authorised representative.
3.2 The Buyer hereby warrants the accuracy of the terms of any order or specification submitted by the Buyer, and that it has given (or will give the Company within a sufficient time to enable the Company to perform the Contract in accordance with its terms) all information and materials necessary to the Company for the purpose of manufacturing the Goods or performing the Services.
3.3 No order for Goods or Services which has been accepted by the Company may be cancelled by the Buyer except with the agreement in writing of the Company and on terms that the Buyer, at the Company's discretion, shall indemnify the Company 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 Company as a result of cancellation.
4. PRICES
4.1 Subject to any special terms agreed, the Buyer shall pay the price of the Goods which shall be the Company's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company's price list current at the date of delivery of the Goods to the Customer or the Company's charge for the Services and any additional sums which are agreed between the Buyer and the Company for the provision of the Services or which, in the Company's sole discretion, are required as a result of the Buyer's instructions or lack thereof, the quantity or quality of the material supplied by the Buyer or any other cause attributable to the Buyer. All prices quoted are valid for 30 days only unless specified otherwise by the Company or until earlier acceptance by the Buyer, after which time they may be altered by the Company without giving notice to the Buyer.
4.2 Without prejudice to clause 4.1 the Company reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods or Services to reflect any increase in the cost to the Company which is due to any change in delivery dates, quantities or specifications for the Goods or Services which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instructions.
4.3 The price is exclusive of any applicable value added tax or other tax or duty which may be payable, which the Buyer shall additionally be liable to pay at the applicable rate.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in writing between the Buyer and the Company, the Company shall be entitled to invoice the Buyer for the price of the Goods before time of delivery of the Goods, particularly Solway Bins and Liners. Invoice of Services, particularly the collection of waste plastic will normally take place after the event. However, if goods are collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in either event the Company shall be entitled to invoice the Buyer for the price at any time after the Company has notified the Buyer that the Goods are ready for collection or the Company has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods or Services (less any discount agreed by the Company, but without any other deduction or set off save by agreement) within 30 days of the date of the Company's invoice unless specified otherwise by the Company, and the Company shall be entitled to recover the price, notwithstanding that in relation to a contract for Goods delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the invoice shall be of the essence of the Contract.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
5.3.1 cancel or suspend the Contract or suspend any further deliveries to the Buyer;
5.3.2 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 Company) or Services as the Company may think fit (notwithstanding any purported appropriation by the Buyer);
6. DELIVERY
6.1 Delivery of the Goods shall be ex works and shall be either by the Buyer collecting the Goods from the Company's premises at any time after the Company has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Company, by the Company delivering the Goods to the Buyer there or to a carrier for delivery to that place. Where the Company delivers the Goods to a carrier for delivery pursuant to this clause the Company shall be under no obligation under Section 32(2) of the Sale of Goods Act 1979.
6.2 Any period specified for delivery of the Goods will be approximate only and the Company shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed in writing by an authorised representative of the Company. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 If required by the Company the Buyer shall sign a proof of delivery form accepting delivery of the Goods within the meaning of s35 of the Sale of Goods Act 1979.
6.4 The Company reserves the right to deliver the Goods by instalments, part-consignments or to deliver a quantity of goods less than that contracted for and delivery of such shall not entitle the Buyer to reject the Goods. For the avoidance of doubt s30(1) of the Sale of Goods Act 1979 is excluded.
6.5 Where the Goods are or are to be delivered in instalments or part consignments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments or part consignments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments or part consignments shall not entitle the Buyer to treat the contract as a whole as repudiated. For the avoidance of doubt S35A of the Sale of Goods Act 1979 is hereby excluded.
6.6 If the Company fails to deliver the Goods (or any instalment or part consignment) for any reason other than any cause beyond the Company's reasonable control or the Buyer's fault, and the Company is accordingly liable to the Buyer, the Company's liability shall be limited to the difference between the contract price and the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered.
6.7 If the Buyer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Company's fault) then, without prejudice to any other right or remedy available to the Company, the Company may:
6.7.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.7.2 sell the Goods at the price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7. RISK 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 delivered at the Company's premises, at the time when the Company notifies the Buyer that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than at the Company's premises, at the time of delivery whether to the Buyer or to a carrier or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property and title in the Goods shall not pass to the Buyer until the Company has received in cash or cleared funds payment in full of the price of the Goods and of all other goods agreed to be sold or for Services performed by the Company to or for the Buyer for which payment is then due. If payments received from the Buyer are not stated to refer to a particular invoice the Company may appropriate such payments to any outstanding invoice.
7.2.1 Until the price for the Goods is paid for in full, the Goods shall notwithstanding delivery, remain the property of the Company. Until property in the Goods passes, the Company may at any time require the Goods to be returned to it by the Buyer. Until property in the Goods passes, the Buyer shall, so far as possible, keep the Goods in such a way that they are identifiable as the property of the Company and separate from all other goods in the possession of the Buyer. The Buyer wil insure against loss for any reasonof the Goods supplied under the contract. The policy shall have the Company’s interest noted in the policy as vendor price unpaid, until such time passes to the Buyer.
7.3 Until such time as the property and title in the Goods passes to the Buyer (and 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.
7.4 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company but if the Buyer does so all monies owing by the Buyer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
7.5 If the Buyer rejects the Goods for any reason then the Buyer shall not have the benefit of or be able to rely upon S36 of the Sale of Goods Act 1979 but shall be bound to return the Goods to the Company and risk in the Goods shall remain with the Buyer until the Goods are returned.
8. WARRANTIES AND LIABILITY
8.1 Subject to the conditions set out below the Company warrants that the Goods or Services supplied will be provided using reasonable care and skill and will, as far as reasonably possible, correspond with any specification of the Buyer and will be free from defects in material and workmanship at the time of delivery.
8.2 The above warranty is given by the Company subject to the following conditions:
8.2.1 the Company shall be under no liability in respect of any defect in the Goods or Services arising from any specification or materials supplied by the Buyer;
8.2.2 the Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods or Services has not been paid by the due date for payment.
8.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Any claim by the Buyer which is based on any alleged defect in the quantity quality or condition of the Goods or the Services or their failure to correspond with the Buyer's order or specification shall (whether or not delivery is refused by the Buyer) be notified to the Company, verbally or in writing within 14 days from the date of receipt or tender of the Goods by or to the Buyer or (where a defect or failure was not apparent on reasonable inspection) within 30 days. If delivery is not refused, and the Buyer does not so notify the Company, the Buyer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods or Services had been delivered or performed in accordance with the Contract. In no event shall the Buyer be entitled to reject the Goods or any part of them on the basis of any defect or failure which is so slight that it would be unreasonable for him to reject them.
8.5 Where any valid claim in respect of any of the Goods or Services which is based on any defect in the quantity quality or condition of the Goods or the Services or their failure to meet the Buyer's design or specification is notified to the Company in accordance with these Conditions, the Company shall be entitled to replace the Goods (or the part in question) free of charge or, at the Company's sole discretion, refund to the Buyer the price of the Goods or Services (or a proportionate part of the price), but the Company shall have no further liability to the Buyer.
8.6 Except in respect of death or personal injury caused by the Company's negligence, the Company shall not be liable to the Buyer by reason of any act, omission and/or representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss (including loss of profits, interest or loss of market), damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the provision of the Services or the supply of the Goods or their use or resale by the Buyer, and the entire liability of the Company under or in connection with the Contract shall be limited to the contract price.
9. FORCE MAJEURE
9.1 If the Company is delayed or hindered from supplying the Goods or performing the Services the subject of the Contract in the ordinary course of business or is being prevented or hindered by circumstances beyond its reasonable control, including (but not limited to) any form of government intervention, strikes and/or lock-outs or other industrial disputes (whether involving the workforce of the Company or of any other party) interruption of transport, default of suppliers or sub-contractors or any act of God, war, fire, explosion, accident, breakdown of plant or machinery or any other cause whatsoever outside the control of the Company, the Company 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 Company's obligations in relation to the Contract.
9.2 In the event of any of the above delaying or hindering performance of the Contract either party shall be entitled to cancel the Contract or to extend the time of its performance by a period equivalent to that during which performance by the Company has been prevented by the particular circumstances.
10. INSOLVENCY OF THE BUYER
10.1 This clause applies if:
10.1.1 the Buyer makes any voluntary arrangements with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose 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 Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this clause applies, then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, 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.
11. EXPORT TERMS
11.1 In these Conditions "Incoterms 1990" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given particular meaning by the provisions of Incoterms 1990 shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms 1990 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 Company) apply notwithstanding any other provisions of these Conditions.
11.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
11.4 Unless otherwise agreed in writing between the Buyer and the Company, the Goods shall be delivered in the manner and to the place and country of destination named in the Order and the Company 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 Company's premises before shipment. The Company 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.
12. RIGHTS OF THIRD PARTIES
12.1 Pursuant to section 1 of the Contract (Rights of Third Parties) Act 1999 (applicable to England and Wales only) the parties to this contract intend that no term of this contract may be enforced by a third party and that no benefit is intended by this contract to be given to any third party.
12.2 Without prejudice to the rights of the company or of the Buyer whether included by common law or statute any and/or all terms of the Contract can be rescinded or varied by the mutual consent of the Company or Buyer.
13. GENERAL
13.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
13.2 No waiver by the Company 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 provisions.
13.3 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 effected.
14. PATENT PROTECTION
14.1 The Solway Recycling Bin and Liner system is protected by Patent Pending and Copyright. The Company reserve their rights and pleas to vigorously pursue any parties deemed to have infringed their rights.
15 SOLWAY LINERS
15.1 Solway Liners are supplied for the sole purpose of storing waste materials.
15.2 Solway Liners will only be uplifted by registered, authorised persons or companies, appointed by the Company, by written contract, who are acting as part of, or on behalf of, the Companys’ National Farmers Waste Service.
15.3 The Company will consider it to be a breach of these Solway Conditions if an unauthorised body, or party collects Solway Liners. In such an event the Company reserve their rights and pleas to sue for loss of revenue from any companies or persons uplifting or damaging Solway Liners, or who claim, or attempt to claim ownership of Solway Liners.
15.4 Monies paid for Solway Liners are a handling fee only, and they do not transfer ownership from the Company to the Buyer. In such respect Solway Liners will always remain the property of the Company or legitimate companies authorised by the Company conducting themselves as part of the National Farmers Waste Service.
15.5 Vendors and purchasers of Solway Bins and Solway Liners will accept that Solway Liners are part of the Conditions and as such they will only use original replacement Solway Liners.
16 INFORMATION
16.1 The Company requires all suppliers of the Goods to report detailed information on sales within one month of the transaction
16.2 Suppliers of Goods are also required to accept responsibility for making their customers aware of these Conditions.
17 WASTE
17.1 The Company will only accept Waste that has been described accurately in writing and Customers must ensure that Waste delivered or uplifted is in accord with the description in each and every respect.
17.2 In the event that Waste does not conform to the description, the Company will reject the Waste, place it in a quarantine area, and organise for it to be transferred to a suitably licenced disposal point.
17.3 The Company will not be liable in any way whatsoever for a customer’s loss damage and expense, however arising, whether direct or indirect in conjunction with its rejection of Waste.
18 LAW AND JURISDICTION
18.1 These conditions and the contract between the parties shall be governed by the Laws of Scotland.
