Terms & Conditions
Definitions and interpretation
"Buyer" means the person, company or other body placing an Order with Quay Fabrications (Lancaster) Ltd;
"Conditions" means the standard terms and conditions of sale and/or supply set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and Quay Fabrications (Lancaster) Ltd;
"Contract" means the contract for the supply of Goods fabricated by Quay Fabrications (Lancaster) Ltd’s acceptance (which, however made or communicated, shall be deemed made subject to these Conditions);
"Quay fabrications" means Quay Fabrications (Lancaster) Ltd of 41 Paragon Way, Lune Industrial Estate, Lancaster, LA1 5FT registered in England and Wales with Company No. 3707688;
"Goods" means the goods as set out in the Order;
"Intellectual Property" means all patents, rights to inventions, copyright and related rights, trademarks, trade names, copyright, rights in designs and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
"Month" means a calendar month;
"Order" means the order placed by the Buyer for the supply of Goods;
"Price" means the price of the Goods, determined in accordance with condition 5.1 below;
"Quotation" means the quotation provided by Quay Fabrications to the Buyer detailing the Goods and Price of the Goods;
"Specification" means the specification for the Goods, as detailed in the Quotation; and
"Writing" includes email, facsimile transmission and comparable means of communication.
1.1 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.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.3 In these Conditions, a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.0 Formation of the Contract
2.1 The Contract shall be deemed to have been entered into upon receipt of Quay Fabrications written Order acknowledgement or when Quay Fabrications delivers the Goods, whichever is the earlier. All Goods sold are sold subject to these Conditions and these Conditions shall be the sole terms and conditions applicable. Terms and Conditions on the Buyer's order form or other similar document shall not be binding on Quay Fabrications and the placing of the Order by the Buyer shall indicate unqualified acceptance of these Conditions.
2.2 These Conditions shall override any terms or conditions which the Buyer purports to incorporate into the Contract. No variation to these Conditions shall be binding unless agreed in writing by a director of Quay Fabrications.
2.3 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 Quay Fabrications shall be subject to correction without any liability on the part of Quay Fabrications.
3.0 Orders and specifications
3.1 The giving of a Quotation by Quay Fabrications shall be without any commitment on Quay Fabrications to accept an Order and subject to condition 2.3 above, no Order submitted by the Buyer shall be fully binding on Quay Fabrications until the Contract is entered into in accordance with condition 2.1 above.
3.2 Quay Fabrications shall be under no obligation to acknowledge receipt of any Order and may execute the Order without further reference to the Buyer.
3.3 The Buyer shall be responsible to Quay Fabrication for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Buyer, and for giving Quay Fabrications any necessary information relating to the Goods within a sufficient time to enable Quay Fabrications to perform the Contract in accordance with its terms.
3.4 Goods are supplied on condition that the Buyer undertakes at all times to take and comply with (and to draw to third parties' attention and require them to take and comply with) all responsible and prudent precautions in respect of the Goods, including without limitation, as to the transportation, installation, use, maintenance, storage, cleaning treating, sealing, disposal and otherwise of the Goods.
3.5 Quay Fabrications shall use reasonable endeavours to deliver the Goods to the Buyer (where agreed) in accordance with the Quotation and estimated delivery dates.
3.6 No Order which has been accepted by Quay Fabrications may be cancelled by the Buyer except with Quay Fabrications prior written agreement (which may be withheld at Quay Fabrications discretion) and on terms that the Buyer shall indemnify Quay Fabrications in full against any and all losses (including without limitation loss of profit), costs (including without limitation the cost of all labour and material used), damages, charges and expenses incurred by Quay Fabrications as a result of cancellation.
3.7 If the Buyer supplies templates or drawings for the Goods and the dimensions are different from those given in written instructions to Quay Fabrications by the Buyer, the Goods will be manufactured to the size of the template or drawings within commercially reasonable tolerances.
4.1 The quantity and description of the Goods shall be as set out in Quay Fabrications Quotation.
4.2 All samples, drawings, descriptive matter, specifications and advertising issued by Quay Fabrications and any descriptions or illustrations contained in Quay Fabrications catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
5.0 Rates and payment
5.1 Subject to the provisions of this condition 5, the Price of the Goods shall be the price stated in Quay Fabrications Quotation, or where no price has been quoted (or a quoted price is no longer valid), the price listed in Quay Fabrications published price list current at the date of acceptance of the Order. Unless otherwise detailed in the Quotation, all Quotations shall be valid for 15 days after which time they may be altered by Quay Fabrications without giving notice to the Buyer.
5.2 Quay Fabrications reserves the right, by giving notice to the Buyer at any time before delivery, to amend the Quotation to reflect any increase in the cost to Quay Fabrications which is due to any factor beyond the control of Quay Fabrications (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), any change in delivery dates, quantities or specification for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give Quay Fabrications adequate information or instructions.
5.3 The Price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to Quay Fabrications.
5.4 The cost of pallets and returnable containers (where required) will be charged to the Buyer in addition to the Price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to Quay Fabrications before the due payment date.
5.5 Time of payment shall be of the essence of the Contract.
5.6 All goods remain the property of Quay Fabrications until the full balance payment invoice (as calculated by Quay Fabrications, including variations and additional materials/goods and services) are paid in full and received as cleared funds in our account. Quay Fabrications has the right to enter any installation or storage location to remove and recover goods and materials to recover costs.
5.7 Payment by the Buyer to Quay Fabrications shall be made in full within 30 (thirty) days after the end of the Month in which delivery of the Goods is made, unless otherwise agreed or notified to the Buyer by Quay Fabrications in Writing.
5.8 The Buyer acknowledges and agrees that delivery of the Goods may not occur until after the due date for payment. Receipts for payment will be issued only upon request.
5.9 Without prejudice to any other rights or remedy that it may have, if the Buyer fails to pay Quay Fabrications on the due date Quay Fabrications may:
(a) charge interest on any amounts overdue at the rate of 10% per annum above the base rate of the HSBC Bank Plc as applying from time to time to run from the due date for payment until receipt by Quay Fabrications of the full amount whether or not after judgment and without prejudice to any other right or remedy of Quay Fabrications, and shall compound quarterly;
(b) suspend delivery of any Goods; and/or
(c) Quay Fabrications may enter the premises and remove supplied materials to recover costs.
(d) cancel the Order.
5.10 No payment shall be deemed to have been received until Quay Fabrications has received cleared funds.
5.11 All payments payable to Quay Fabrications under the Contract shall become due immediately on its termination despite any other provision.
5.12 The Buyer shall make all payments due under the Contract in full without any deduction whether by set-off, counterclaim, discount, abatement or otherwise.
6.0 Intellectual Property Rights
6.1 The Buyer acknowledges that any and all Intellectual Property in and relating to the Goods, Quay Fabrications and / or Quay Fabrications business belong solely to Quay Fabrications and shall remain entirely in the ownership of Quay Fabrications. Nothing said or done by either party shall constitute the transfer of any such rights.
7.0 Buyer's obligations
7.1 The Buyer:
(a) shall co-operate with Quay Fabrications in all matters relating to the Goods;
(b) shall provide, in a timely manner, such information as Quay Fabrications may request and ensure that it is accurate in all material respects; and
(c) shall obtain at its own cost all the necessary permissions, certificates, licences, permits and consents required by statute or any order or regulation made thereunder or by any registration or by-law of any local authority in respect of the Goods.
8.1 Unless otherwise agreed in writing by Quay Fabrications, the Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree ("Delivery Location").
8.2 Delivery of the Goods shall occur on the Goods' arrival at the Delivery Location.
8.3 Any dates specified by Quay Fabrications 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.
8.4 If for any reason the Buyer fails to accept delivery of any of the Goods or Quay Fabrications is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by Quay Fabrications's negligence) at the point Quay Fabrications was ready to deliver the Goods;
(b) the Goods shall be deemed to have been delivered;
(c) where applicable, Quay Fabrications may charge the Buyer for Quay Fabrications abortive delivery costs; and
(d) Quay Fabrications may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); and
(e) Quay Fabrications may sell the Goods and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall between the amount recouped from such sale and the Price.
8.5 Quay Fabrications may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract. No cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
9.1 The quantity of any consignment of Goods as recorded by Quay Fabrications upon the Delivery Order shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
9.2 Quay Fabrications shall not be liable for any non-delivery of the Goods (even if caused by Quay Fabrications negligence) unless the Buyer gives written notice to Quay Fabrications of the non-delivery within 5 days of the date when the Goods were or where applicable, would in the ordinary course of events have been received.
9.3 Any liability of Quay Fabrications for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or refunding the fee paid for such Goods.
10.0 Risk / Title
10.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
(a) in the case of Goods to be collected from Quay Fabrications premises, at the time when Quay Fabrications notifies the Buyer that the Goods are available for collection; or
(b) in the case of the Goods to be delivered somewhere other than at Quay Fabrications premises at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when Quay Fabrications has tendered delivery of the Goods.
10.2 Quay Fabrications shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Quay Fabrications.
10.3 On termination of the Contract, howsoever caused, Quay Fabrications (but not the Buyer's) rights contained in this condition 10 shall remain in effect.
10.4 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until Quay Fabrications has received in cash or cleared funds payment in full of the price of the Goods and all other sums then due and payable by the Buyer to Quay Fabrications in respect of this or any other contract.
10.5 Until such time as the property in the Goods passes to the Buyer, the Buyer shall:
(a) hold the Goods as Quay Fabrications fiduciary agent and bailee;
(b) keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Quay Fabrications property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain such Goods in satisfactory condition and insure the Goods and keep them insured on Quay Fabrications behalf for their full price against all risks with an insurer that is reasonably acceptable to Quay Fabrications and upon request from Quay Fabrications, to provide written evidence of such; and
(e) not be entitled to resell, dispose of or transfer the Goods in any way until ownership has passed in accordance with condition 10.4 above, unless otherwise agreed in writing by a director of Quay Fabrications.
10.6 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), Quay Fabrications shall be entitled at any time to require the Buyer to deliver up to the Goods to Quay Fabrications and the Buyer grants Quay Fabrications, its agents and employees an irrevocable licence at any time to enter upon any premises of the Buyer or any third party where the Goods are or may be stored in order to inspect them or, where the Buyer's right to possession has terminated, to repossess the Goods.
10.7 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 Quay Fabrications, but if the Buyer does so all monies owing by the Buyer to Quay Fabrications shall (without prejudice to any other right or remedy of Quay Fabrications) forthwith become due and payable.
11.1 Subject to the provisions of this condition 11 and provided the Goods are at all times dealt with strictly in accordance with any and all instructions Quay Fabrications supplies to the Buyer from time to time, Quay Fabrications warrants that upon delivery of the Goods in accordance with condition 8 the Goods shall comply in all material respects with the Specification.
11.2 Where the Goods do not meet the warranty detailed in condition 11.1, Quay Fabrications shall (at its election) repair or replace free of charge any Goods (or the relevant constituent parts not being expendable items) which in any such case Quay Fabrications shall find upon examination (for which the Buyer will provide full facilities) to have been so defective provided that:
(a) the claim is not attributable to fair wear and tear or any fault or damage arising from impact, modification, inappropriate use or treatment, incorrect handling or exposure to corrosive substances or substances otherwise injurious to the Goods or their constituent materials;
(b) the claim is made by the Buyer as Quay Fabrications original customer for the Buyer's own benefit;
(c) the claim is notified (in detail) in Writing to Quay Fabrications within 3 working days of delivery;
(d) Quay Fabrications recommendations for installation, maintenance, storage, use and following-up in respect of the Goods have been complied with;
(e) the claim is not attributable to any defect arising from any drawing, design, specification, information or other material supplied by the Buyer;
(f) the Goods have not been adjusted, altered, adopted or repaired by any party other than Quay Fabrications; and
(g) the Buyer notifies Quay Fabrications in accordance with condition 11.4 below.
11.3 Where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer are not affected by these conditions.
11.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with the Specification shall be notified to Quay Fabrications within 7 days from the date of physical delivery of the Goods in accordance with condition 8 or, where the defect or failure was not apparent on reasonable inspection, within 30 days from the date of physical delivery of the Goods in accordance with condition 8 and, where requested by Quay Fabrications, the Buyer will provide Quay Fabrications with access to any premises where the Goods are stored in order to assess the validity of the claim. If the Buyer does not notify Quay Fabrications accordingly, the Buyer shall not be entitled to reject the Goods and the Buyer shall be bound to pay the Price as if the Goods had been delivered in accordance with the Contract.
11.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet the Specification is notified to Quay Fabrications in accordance with these Conditions, Quay Fabrications shall be entitled to replace the Goods (or the part in question) free of charge or, at Quay Fabrications sole discretion, refund to the Buyer the Price of the Goods (or a proportionate part of the Price where applicable).
12.1 This clause 12 sets out the entire financial liability of Quay Fabrications (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of any breach of this Contract; any use made by the Buyer of the Goods in whole or in part; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract.
12.2 Except as expressly set out in this Contract, all warranties, conditions and other terms implied by statute or common law or otherwise are, to the fullest extent permitted by law, excluded from this Contract.
12.3 Nothing in this Contract limits or excludes the liability of Quay Fabrications for death or personal injury resulting from negligence; or for any damage or liability incurred by the Client as a result of fraud by Quay Fabrications; or for any liability that, by law, cannot be limited or excluded.
12.4 Subject to clause 12.3 above:
(a) Quay Fabrications shall not be liable for loss of profits; or loss of business; or depletion of goodwill and/or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
(b) Quay Fabrications total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise shall be limited to the Price of the Goods.
12.5 This condition 12 shall survive termination of the Contract, howsoever arising.
13.1 The Buyer shall at all times keep secret and confidential all Intellectual Property and technical or commercial know-how, specifications, inventions, processes, initiatives, business and trade secrets, methods of doing business and all other information of a confidential nature which have been disclosed to the Buyer or the Buyer's agent by Quay Fabrications, its employees, agents or sub-contractors and any other confidential information concerning Quay Fabrications business or its products which the Buyer may obtain. The Buyer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Buyer's obligations to Quay Fabrications, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Buyer.
13.2 The above 13.1 shall not apply to confidential information which:
(a) is in the public domain or is already lawfully known to the Buyer at the time of disclosure; or
(b) subsequently comes lawfully into the possession of the Buyer from a third party; or
(c) subsequently enters the public domain otherwise than as a result of unauthorised disclosure by Quay Fabrications or any other person.
13.3 This condition 13 shall survive termination of the Contract, however arising.
14.1 The Buyer agrees to indemnify and keep indemnified Quay Fabrications from and against all costs, claims, demands, liabilities, expenses, damages or losses (including without limitation consequential losses, loss of profit and loss of reputation) incurred by Quay Fabrications in respect of any breach of the terms of the Contract including but not limited to Quay Fabrications liability to third parties arising out of the Goods including (without limitation) liability to enforcement agencies and consumers for unsafe and defective goods and any breach of third party Intellectual Property. This indemnity shall apply whether or not Quay Fabrications may have been negligent or at fault.
15.0 Insolvency of the Buyer
15.1 This condition 15 applies if:
(a) 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 Seller) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction);
(b) an encumbrance takes possession or a receiver, administrator receiver or administrator is appointed over any of the property or assets of the Buyer;
(c) the Buyer ceases or threatens to cease to carry on business; or
(d) Quay Fabrications reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
15.2 If this condition 15 applies then, without prejudice to any other right or remedy available to or already accrued to a party, Quay Fabrications shall be entitled to cancel an Order and/or the Contract and if the Goods have been delivered (even in-part) but not paid for the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. Quay Fabrications also reserves the right to remove delivered or installed goods whilst the full contract balance is outstanding to recover costs.
15.3 In the event of bankruptcy or insolvency Quay Fabrications will be named as ‘first to be paid’ during any liquidation or arbitrary discussions/agreements.
16.0 Status of the Buyer
16.1 The Buyer warrants to Quay Fabrications that it has experience of dealing with goods of the same kind as the Goods and warrants to use the Goods only in the manner and for the purpose for which they are designed.
17.1 The Buyer shall not be entitled to transfer or assign the Contract or any part of it without the prior written consent of Quay Fabrications.
18.0 Force Majeure
18.1 Quay Fabrications shall not be liable to the Buyer under the Contract if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Quay Fabrications 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, labour, fuel, parts or machinery, power failure or break down of machinery provided that, if the event in question continues for a continuous period in excess of 90 days, either party shall be entitled to give notice in writing to the other to terminate the Contract without prejudice to any other rights or remedies already accrued to a party.
19.1 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.
19.2 Each right or remedy of Quay Fabrications under the Contract is without prejudice to any other right or remedy of Quay Fabrications whether under the Contract or not.
19.3 Each provision of the Contract is severable and distinct from the others and if any provision of the Contract is at any time 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 shall not form part of the Contract and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
19.4 Failure or delay by Quay Fabrications in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of that right or any other rights under the Contract, nor separate to bar exercise or enforcement of it or any other right at any time or times thereafter.
19.5 Any waiver by Quay Fabrications of any breach of, or any default under, any provision of the Contract by the Buyer must be given in Writing but shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
19.6 No term of the Contract shall be enforceable by any party who is not a party to the Contract under the Contracts (Rights of Third Parties) Act 1999.
19.7 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list or other document shall be subject to correction without any liability on the part of Quay Fabrications.
19.8 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.
19.9 Each party warrants to the other that the Contract constitutes the entire agreement and understanding between the parties and supersedes any previous agreement between them relating to the matters contained in the Contract. Further, in entering into the Contract, it does not rely on any statement, representation, assurance, promise or warranty of any person other than as expressly set out in these Conditions. Neither party excludes its liability for fraud.