Metrode

Terms and Conditions of Sale

1. GENERAL

These conditions shall govern any contract made by us for or in connection with the supply or sale by us in the United Kingdom of welding consumables, hereafter called “goods”. In default of our written Agreement expressly overriding these conditions or one or more of them:

(a) no other terms or conditions howsoever arising, whether express or implied, being inconsistent with these conditions, whether contained in any order form or otherwise, shall govern or affect any such contract whatsoever by us including any collateral and these conditions shall prevail:
(b) any performance or partial performance by us of any order placed with us shall be carried out on these terms and no others;
(c) no representation purporting to be made by us or on our behalf in respect of or in connection with the goods and without prejudice to the generality of the foregoing, whether as to the description, nature, condition, conformity with sample or quality of the goods or as to their fitness for any purpose whatsoever, shall bind us or become a term of any contract and we shall be under no liability to you in respect thereof. You may rely solely upon your own skill and judgement unless you wish to rely upon any representation by us in which event you must make an express agreement in writing with us in that respect.

Without prejudice to the generality of the foregoing, we accept no responsibility or liability otherwise than may be expressly provided by these conditions for gratuitous or chargeable advice, services or goods unless such responsibility or liability is expressly acknowledged by us in writing.

2. PRICE

The price payable will be that agreed prior to despatch unless our standard price of goods has risen by the time of despatch or deemed despatch as shown in our current price lists, copies of which are available on request, in which event the price payable will be that obtaining in the relevant list at the date of despatch or deemed despatch subject to any agreed discount.

3. LIMITS OF CONTRACT

Any offer by us includes only such goods and services as are expressly specified in writing and we shall be under no liability whatsoever to supply any other goods or services whatsoever.

4. DOCUMENTS

No document whatsoever containing any description whatsoever of our goods, including without prejudice to the generality of the foregoing any document containing specifications, drawings, particulars of weights or dimensions, illustrations, legends, price lists and any advertising material, is intended to constitute or shall constitute a representation or form any part of any contract.

5. TESTS

Goods manufactured by us are where practicable, subjected to a system of sample testing at our works. If tests other than those specified or tests in the presence of your representative are required, we will make a reasonable charge. In the event of any delay on your part in attending such tests or in carrying out any inspection required by you, the test will proceed after seven days notice of our readiness, and our results will be deemed to be accurate, whether or not you have attended.

6. PERFORMANCE

(a) All technical data, specifications and performance figures given by us are based on the National or International Standard where shown, or otherwise on the detail of the item currently in production on our own operating experience, and on the tests we or our supplier have carried out in normal test conditions. We accept no responsibility for and you are solely responsible for assessing if goods, whether alone or in combination, are suitable and sufficient for your purposes, whether or not we are aware of your purposes, and whether your operating conditions will enable any goods to reproduce their test performance.
(b) All conditions and/or warranties which might be implied under Section 13, 14 and/or 15 of the Sale of Goods Act 1979, as amended or by any other Statute amending or replacing the same, are hereby expressly excluded.

7. DESPATCH

The time given for despatch is to date from receipt by us, both of a written order to proceed upon these terms and of all necessary information to enable us to put work in hand. Unless the date of despatch has been guaranteed by us in writing and you have suffered loss as a result of delay in despatch and there is a written agreement whereby we are liable for liquidated damages, all liability on our part for failure to achieve despatch within the time given is hereby expressly excluded in all cases, whether a time for despatch has been guaranteed or not, should any work or service be carried out by us or should despatch be hindered or delayed by you, your servants or agents, whether directly or indirectly, any loss or damage caused to us shall be reimbursed by you and shall constitute an increase in the contract price.

8. FORCE MAJEURE etc.

Our performance of any term of any contract, and in particular but without prejudice to the generality of the foregoing, of any guarantee of time of delivery, is open to variation by agreement and in default of agreement any contract is subject to cancellation by us in the event of act of God, war, civil commotion, strike, lock-out, Governmental order or regulation, national or local emergency, fire, flood, drought, tempest, log, accident, shortage or non-supply of materials or labour or transport, and without prejudice to the generality of the foregoing in the event of any other matter beyond our control, which causes major disruption of or prevention to be within our sole and unchallengeable judgement.

9. DELIVERY

(a) We shall be entitled to deliver and invoice all and any goods by instalments and any such goods shall be deemed to be the subject of a severed and separate contract.
(b) Unless otherwise agreed in writing, we shall have the right to choose the mode of delivery which will normally be the most economical means of transport. If you require delivery by any special or different form of transport, any additional cost shall be payable by you, on invoice.
(c) Unless otherwise agreed in writing carriage of goods will be charged by us and constitute an increase in the contract price.

10. TERMS OF PAYMENT

(a) In respect of all sums payable to us, time of payment shall be of the essence and unless other terms are expressly agreed in writing, our terms of payment are nett cash payment in full before the end of the month following that in which the goods are invoiced. No discount, set-off or allowance may be made unless expressly agreed in writing by us. Where goods are supplied in instalments or at different times, each may be invoiced separately whether or not the proportionate price thereof has been agreed.
(b) It you fail to comply with our terms of payment, without prejudice to our other rights we reserve the right to discontinue forthwith the provision to you of any further goods or services whatsoever under any agreements then existing between us without any liability whatsoever on our part and to treat or defer treating any or all agreements as repudiated by you. Upon discontinuance and before acceptance of repudiation, we shall be entitled to make a charge payable forthwith for that part of the cost of any contract already incurred by us together with the full profit which would have been obtained, less the scrap value of any item retained.
(c) Further or alternatively we shall be entitled at our sole discretion to make a surcharge upon all sums remaining unpaid after the due date at a rate not exceeding 5 per cent per annum above HSBC Bank Base Lending Rate calculable from day to day with monthly rests.

11. RETENTION OF TITLE AND TRANSFER OF RISK

The risk of loss or damage to the goods shall pass to you on delivery, but the property in the goods shall not pass to you until they have been paid for in full and all other monies due from you to us in connection with all goods have been paid. Until the goods have been paid for in full:-

(a) you will hold the goods for us as trustee;
(b) you shall store the goods separately from other goods and mark the same as our property;
(c) we shall be entitled at any time to enter upon your premises for the purpose of repossessing the goods; (d) you may sell the goods to third parties, but in so doing you shall be acting on our behalf as agent and shall keep the proceeds of any sub-sales in a separate account and the proceeds of any such sub-sale shall be held by you as trustee for us.

12. DELAY AND STORAGE

If we are not given forwarding instructions sufficient to enable us to despatch the goods within 14 days after the date of notification that they are ready for despatch you shall take delivery at the premises from which the goods are available for despatch or arrange storage. If you do not do so, delivery shall be deemed to have occurred and we shall be entitled to arrange and charge for storage wherever we choose as your agents and at your risk and all charges, storage, insurance and demurrage shall be payable by you on invoice. All payments shall be due as if delivery has been made, and until all payments due from you to us have been made we shall have a general lien on the goods.

13. LOSS OR DAMAGE IN TRANSIT

When the price quoted includes delivery we will replace the goods lost or damaged in transit free of charge provided that both the carriers and ourselves receive written notification of such loss or damage within 7 working days of such an event but all other liability on our part is hereby expressly excluded.

14. CLAIMS FOR SHORTAGES etc

In the event of incomplete delivery arising otherwise than through loss or damage in transit, we will be under no liability whatsoever unless we receive written notification of all relevant details within 7 days of delivery, and in no circumstances will we be liable for any indirect or consequential losses.

15. OUR LIABILITY

(a) In the event of any failure in the goods due to defective design, materials or workma ship our liability should be limited to the cost of replacement of the goods provided that Written notification is given to us within three months of the date of delivery or deemed delivery, or such shorter time as may be specified in the quotation. Goods returned to us will not be accepted unless our written consent to their return has previously been obtained. Clause 9 (b) and (c) will apply to replacements.
(b) Subject to Clause 17, our obligations under Clause 15 (a) is in lieu of all conditions, warranties or other terms, whether express or implied, statutory or otherwise, and without prejudice to the foregoing generality whether as to the nature, condition, description, conformity with sample, quality or fitness for purpose of the goods or otherwise (“Warranties’).
(c) Save as provided in Clause 15 (a), we shall be under no liability whatsoever to you, and hereby exclude all liability, whether in contract, tort (including without limitation, negligence), for misrepresentation, breach of statutory duty or otherwise, breach of Warranties, for direct or indirect or consequential loss, loss of profit, revenue or goodwill or liability in connection with goods, advice or services supplied.
(d) In any event our total liability to you under this Agreement in connection with all goods or services supplied shall be limited to the price paid by you for the goods or services in respect of which the liability arises and all conditions, or Warranties or other terms whether express or implied, statutory or otherwise, inconsistent with the provisions of this Clause 15 (d) are expressly excluded, save as provided in Clause 17.
(e) Nothing in this Agreement shall be taken to exclude or restrict our liability for death or personal injury caused by our negligence, to the extent such liability cannot be excluded under the Unfair Contract Terms Act 1977.
(f) The provisions (a) and (d) of this Clause shall be construed severally and as separate contract terms.
(g) For the purposes of Clauses 15 and 17 we contract on our own behalf and as trustees for our servants and agents.

16. PATENTS

(a) We will indemnify you against any claim for infringement of Letters Patent, registered design, trade mark or copyright Obtaining at the date of delivery or deemed delivery caused by the use of any goods or documents supplied by us to you and against all costs and damages which you may incur in any action for such infringement resulting from a design, requirement, specification or instruction given by you or on your behalf or from use in a manner or for a purpose other than one expressly made known to us at the time of agreement or from use in a foreign country or from use in combination or association with any other goods not supplied by us, provided further that this indemnity is conditional upon prompt notice being given to us by you in writing of any allegation whatsoever of an infringement and also that we may conduct any dealings, negotiation or litigation arising therefrom in such manner as we may deem appropriate whether in your name or in our own.
(b) Where goods are supplied to meet your design, requirement specification or instruction, and the same or any of them cause any infringement as aforesaid, you will indemnify us against all claims whatsoever made against us and the costs thereof provided we give you prompt notice of any allegation of infringement.

17. LIABILITY FOR ACCIDENTS AND DAMAGE

If our servants or agents are on site for the fulfilment of any agreement, notwithstanding the provisions of Clause 15

(a) we will at our option effect repairs or indemnify you against damage or injury directly caused to your servants or agents or to your property by our servants’ or agents’ negligence while working on site, but not otherwise, provided that: (a) our total liability hereunder for damage to property, whether involving a breach ol contract or statutory duty or not, shall not exceed £1,000,000 or the price of the goods or services, whichever is greater, and
(b) we shall not be liable to you for any loss of profit or loss of contracts or for any indirect or consequential losses whatsoever and howsoever arising, and
(c) save as provided in Clause 15, we shall not be liable for any damage or injury occurring after our servants or agents have left the site.

18. STATUTORY AND OTHER REGULATIONS

If the cost to us of performing our obligations be increased or reduced after the date of offer by reason of the making or amendment after the date of any offer by us, of any law, order, regulation or byelaw, the price shall be increased or decreased commensurately.

19. TIME OR INDULGENCE

Our rights shall not be prejudiced, waived or affected by any time, forbearance or indulgence extended by us, our servants or agents to you, your servants or agents.

20. TERMINATION RIGHTS

(a) Without prejudice to other rights and remedies we shall be entitled to terminate any agreement with you forthwith on the happening of any of the following events:
(i) your failure to pay any sums due to us on the due date in respect of any agreement,
(ii) your breach of any condition of any agreement with us;
(iii) if you have a Receiver, an Administrative Receiver or a Receiver and Manager appointed or if you go into any form of liquidation, administration or enter into composition with your creditors or commit an act of bankruptcy or are the subject of distress or any execution is levied against you or you take or suffer any similar action in consequence of debt;
(iv) you cease to be able to pay your debts as and when they fall due.
(b) In the event of termination, without prejudice to our other rights and remedies we shall be entitled:-
(i) to enter upon premises in your possession, occupation or control or to which you have any right of access and to repossess any goods beneficially owned by us
(ii) to be paid all sums then due to us by you in respect of all goods and services whatsoever provided by us to you
(iii) to retain all goods still in our possession or stored on your behalf and to dispose of any interest or title therein
(iv) to be paid forthwith on invoice the loss of profit and actual cost of work service and materials of partially completed goods giving credit for such value if any as they may have for us or for the net proceeds of their disposition and to be paid forthwith on invoice the contract price due in respect of completed goods whether delivered or not, less whichever shall be the lesser of their proceeds of sale or the value of their materials.

21. LEGAL CONSTRUCTION

Any agreement arising in connection with this offer shall in all respects be construed according to English law and all or any actions or arbitrations arising in connection therewith shall be pursued in England.

22. COMPLIANCE WITH LAWS

(a) You shall comply with all applicable laws and regulations with respect to the business conducted by you with or on behalf of Lincoln, and in connection with the resale or marketing of Lincoln products, including (without limitation) all applicable “Anti-bribery Laws,” which prohibit the payment or transfer directly or indirectly of anything of value to governments, government officials, state-owned enterprises, political parties, political party officials, or to relatives or associates of such officials, in connection with obtaining or maintaining business or an improper business advantage.
(b) You agree that you will not participate in the sale of Lincoln products to any entity in or for export to any country that is deemed to be a “prohibited country” under U.S. export control laws (currently, Cuba, Iran, North Korea, Sudan or Syria) or for use in nuclear, chemical or biological weapons or rocket or missile applications.

22. ETHICAL BUSINESS CONDUCT

You shall be committed to fair, honest and ethical business practices. You acknowledge that Lincoln has adopted a Code of Corporate Conduct and Ethics (a copy of which is available on Lincoln’s website at www.lincolnelectric.com) and You agree to conduct yourself in your dealings with or on behalf of Lincoln, or in connection with the resale or marketing of Lincoln products, in a manner that is consistent with and facilitates compliance with Lincoln’s Code. Metrode Products Limited, Hanworth Lane, Chertsey, Surrey

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