Terms and Conditions




1 Interpretation

1.1 In these Conditions the following words shall have the following meanings:
‘Company’ means J & D Wilkie Limited, Marywell Works, Marywell Brae, Kirriemuir, Angus, Scotland DD8 4BJ (Company Number SC53525);

‘Conditions’ means the standard terms and conditions of sale set out in this document;

‘Contract’ means the contract for the sale of the Goods to be supplied by the Company pursuant to these

Conditions, the Company’s standard contract of sale (setting out the description and quantity of the Goods to be

supplied by the Company) and any special terms and conditions agreed in writing between the Customer and the


‘Customer’ means any person (which shall include an individual, firm, body corporate or unincorporated

association) with whom the Company contracts for the supply of goods or services;

‘Goods’ means the goods (or any instalment of the goods) specified in the Company’s standard contract of sale to

which these Conditions are annexed.

1.2 References to a clause or clauses are references to a clause or clauses in these Conditions.


2 Constitution of the Contract and Specification of Goods

2.1 The Contract shall be deemed to come into existence when the Customer’s order is accepted by the earlier of the

Company’s written acceptance or the delivery of the Goods and shall be on the basis that these Conditions are

agreed to by the Customer. In all questions concerning the Contract (except clause 6.1), time is of the essence.

2.2 The Customer acknowledges that it has read these Conditions and that it is fair and reasonable to form part of the


2.3 These Conditions shall apply in place of and prevail over any, terms and conditions of purchase contained or

referred to in the Customer’s order or in correspondence or any other terms or conditions elsewhere or implied by

trade custom, practice or course of dealing unless specifically agreed to in writing by the Company and any

purported provisions to the contrary are hereby excluded or extinguished. Without prejudice to the foregoing

generality any general conditions of order submitted by or on behalf of the Customer shall, if inconsistent with

these Conditions be deemed to have been rejected by the Company.

2.4 No variation of these Conditions shall be binding unless agreed in writing by authorised representatives of the

Company and the Customer.

2.5 The description and illustrations contained in the Company’s catalogues, price list and other advertising materials

(including without limit specifications, technical data and performance criteria) are intended to present a general

idea of the Goods described in them, are given in good faith but are for guidance only and shall not be regarded as

a representation as to the method of use or function of the Goods.

2.6 The Company shall not be liable for any variations in the specification of the Goods which do not materially

affect the use and operation of the Goods or for the substitution of any materials or component parts of the Goods

by other materials or parts of a quality equivalent or superior to that originally specified.

2.7 It shall be the Customer’s responsibility to ensure that the Goods are suitable for their intended purpose. Any

knowledge that the Company has of the Customer’s intended purpose shall not, unless otherwise agreed, imply

any warranty that the Goods are suitable for that purpose.

2.8 The Company shall be entitled to carry out any part(s) of the manufacture of the Goods through any agents or

sub-contractors appointed by it in its absolute discretion for that purpose.

2.9 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of an order for Goods

(including any applicable specification) submitted by the Customer and for giving the Company any necessary

information relating to the Goods to enable the Company to perform the Contract.


3 Price of Goods

3.1 All prices shall be calculated and paid in sterling or otherwise as the Company and the Customer shall agree.

3.2 Prices are quoted exclusive of VAT or other taxes but include normal packing, insurance and carriage to any

mainland destination in Great Britain unless otherwise expressly stated.

3.3 All other rates, prices and discounts published in catalogues, lists and other documents are subject to variation at

any time and any relevant changes shall be notified to the Customer at the date of acceptance of the order. If no

rate or price is quoted or published, the price shall be that current at the date of acceptance of the order.

3.4 The Company reserves the right, by giving notice to the Customer at any time before delivery of the Goods, to

increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor

beyond its reasonable control (such as, without limitation any foreign exchange fluctuation, alteration of duties,

significant increase in the costs of labour, raw materials, fuel or other costs of manufacture and/or carriage), and

change in delivery dates or quantity or specifications for the Goods requested by the Customer.


4 Terms of Payment

4.1 Goods will be invoiced within 24 hours of delivery and unless otherwise specified, payment of accounts must be

received by the 20th day of the calendar month following the invoice date.

4.2 Where any account or part thereof is overdue for payment, the Customer shall cease to be entitled to the benefit of

any discount specified in that account or any other account, and the Company shall be entitled to charge interest

on the amount due from time to time from the last date of timeous payment in terms of clause 4.1 to the actual

date of payment, at the rate of five per centum per annum over the Bank of Scotland base rate in force from time

to time.

4.3 If the Customer fails to make timeous payment or if the Customer ceases to trade or threatens to cease to trade or

if the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order

or goes into liquidation, or a receiver is appointed to any of the assets of the Customer, or if matters are brought to

the attention of the Company which result in the Company forming the reasonable opinion that the Customer is

unable to pay its debts in the ordinary course of its business, then in any such event the Company may either

suspend all further deliveries of the Goods whether under this Contract or otherwise until payment is made in full

or, at its option, treat the Contract as repudiated.

4.4 Any amounts due by the Customer to the Company under the Contract shall be payable in full without any

compensation set-off or counter-claim.

4.5 The Company will be entitled to reimbursement of all legal and other direct costs properly incurred in and

associated with the collection of overdue payments.

4.6 The Company may appropriate any payment made by the Customer to any sum due under the Contract or under

any other such contract as the Company thinks fit and may for this purpose disregard any purported appropriation

by the Customer.

4.7 Price is based on Goods being invoiced to the agreed delivery schedule.


5 Title to Goods

5.1 Notwithstanding delivery, property and title in Goods supplied under the Contract shall not pass to the Customer

until all sums due to the Company under the Contract shall have been paid by the Customer.

5.2 Until property in the Goods passes, the Customer shall keep the Goods free from any lien, charge or

encumbrances and the Company may at any time require the Goods to be returned to it by the Customer and if

any such requirement is not met the Company may repossess the Goods and enter any premises of the Customer

for that purpose.

5.3 Until property in the Goods passes, the Customer shall so far as possible store 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


5.4 Notwithstanding the foregoing, the risk of damage to or loss or destruction of the Goods shall pass to the

Customer at the time the Goods are delivered in accordance with the Contract. Accordingly, the Company shall

not be liable for the safety of the Goods and the Customer should therefore insure the Goods.

5.5 This clause 5 shall survive termination of the Contract for whatever reason.


6 Delivery of Goods

6.1 Unless otherwise specified, delivery dates or periods given by the Company are estimates only and shall not be

construed as fixed.

6.2 Delivery of the Goods shall take place:

6.2.1 where the Company undertakes delivery of the Goods, when the Goods shall be loaded off the Company’s

carriage, ship, lorry or other transport at the station, port or address specified by the Customer; or

6.2.2 where the Customer undertakes delivery of the Goods, when the Goods are loaded onto the Customer’s

carriage, lorry or other transport at the Company’s address.

6.3 The Company shall be under no obligation to give to the Customer the notice mentioned in Section 32(3) of the

Sale of Goods Act 1979.

6.4 Any receipt obtained by the Company from the Customer accepting or taking delivery of the Goods shall be

conclusive evidence of delivery by the Company to the Customer of the Goods or such part thereof as is indicated

by the receipt.

6.5 The Company may deliver the Goods in instalments, and no failure by the Company in respect of any one or

more instalments shall vitiate the Contract.

6.6 If the Customer fails to take delivery of the Goods or any part thereof on the due date or to give adequate

forwarding instructions to enable the Goods to be delivered on the due date, the Company may issue a written

notice to the Customer stating that risk in the Goods shall be deemed to pass to the Customer on the date delivery

was due and that thereafter the Company shall insure and store the Goods at the Customer’s expense and the

Customer shall indemnify the Company in respect of all losses and expenses incurred by it arising out of such


6.7 Unless otherwise agreed in writing between the Company and the Customer, the Company may deliver against

any order a lesser number of Goods than the quantity of Goods ordered without any liability whatsoever to the

Customer save that the Contract value shall be adjusted accordingly.

6.8 The Customer 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.


7 Warranties and Liability

7.1 The Customer shall be deemed to have examined the Goods within three days of delivery thereof (time being of

the essence) and to have satisfied itself that they conform to the Contract. A claim that Goods are not in

accordance with the Contract will not be accepted by the Company unless a separate written notice is given to the

carrier concerned (if appropriate) and to the Company within three days of receipt of the Goods, followed by a

fully and properly vouched claim within fourteen days of receipt of the Goods. Any delivery book or note

marked ‘Not Examined’ will not be accepted by the Company for the purposes of this clause 7.1.

7.2 Failure to notify the Company of the non-delivery of the Goods or any of them within seven days of the receipt by

the Customer of the invoice in respect thereof will release the Company from liability for claims for non delivery.

7.3 Any Goods considered to be damaged or defective and their packaging materials shall be retained by the

Customer, intact as delivered, for a period of twenty-one days from notification of the claim, within which time

the Company or its agents shall have the right to attend at the Customer’s premises to investigate the complaint.

Any breach of this condition shall disentitle the Customer to any claim in this respect.

7.4 The Company shall have no liability to the Customer in respect of damaged or defective Goods where:

7.4.1 damage has been sustained in transit after delivery of the Goods to the Customer or its agents; or

7.4.2 defects are caused by the use of or dealing with the Goods other than in accordance with any instructions

supplied with the Goods, or by wear and tear, accident or misuse, improper application or neglect of if any

adjustments, alterations or other work has been done to the Goods by any person other than the Company.

7.5 Goods represented by the Customer to be defective or not conforming to the Contract shall if authorised by the

Company be returned and shall, at the sole option of the Company, either be replaced or be credited.

7.6 Save in relation to death or personal injury the Company’s liability (if any) to the Customer whether in contract,

delict, quasi-delict or otherwise in respect of any defect in the Goods or for any breach of the Contract or for any

negligent act or omission of the Company or its servants or agents or for any breach by the Company of any duty

owed to the Customer in connection with the Contract or with the Goods shall be limited to the invoice value of

the Goods supplied and the Company shall not in any event be liable for any loss of profit or any indirect, special

or consequential loss or damage or expenditure howsoever caused, nor for any adverse effects resulting from the

application to the Goods of any process, operation or treatment.

7.7 Subject as expressly provided in these Conditions and except for where the Goods are sold to a person dealing as

a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions or terms

implied by statute or common law are excluded to the fullest extent permitted by law.

7.8 The Company shall not be liable to the Customer or deemed to be in breach of the Contract by reason of any

delay or other failure to perform the whole or part of the Contract as a result of factors outside the Company’s

control, and without prejudice to the foregoing generality, factors outside the Company’s control shall include Act

of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or

requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any

governmental or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial

actions or trade disputes, difficulties in obtaining raw materials, labour, fuel, parts or machinery or power failure or

breakdown in machinery.


8 Indemnity

The Customer will indemnify the Company against all claims, costs and expenses resulting from any

infringement of any intellectual property rights or from any claim in respect of any breach of confidence, passing

off or unfair competition or the equivalent in any part of the world where such infringement or claim is due to the

Company having manufactured the Goods in accordance with specifications supplied by the Customer.


9 Arbitration

Any dispute or disagreement under or in connection with the interpretation or application of these Conditions or in

respect of the supply of the Goods shall be referred for determination by an independent arbiter appointed by

agreement or in default of agreement nominated on the application of either the Company or the Customer by the

President for the time being of the Law Society of Scotland. Such arbiter in the determination of such dispute or

disagreement shall act as an expert and not as an arbiter whose decision (in the absence of manifest error) shall be

binding on the Company and the Customer.


10 General

10.1 Any written notice to be given under the Contract shall be given by way of first class prepaid letter post or

facsimile transmission or by telex or by e-mail or by personal delivery by the party giving it to the other party at its

last business address notified to the other and shall be deemed to be delivered either forty-eight hours after posting

(in case of a letter) or immediately upon receipt (in the case of facsimile transmission, telex, or e-mail).

10.2 The Customer shall not be entitled to cancel or repudiate the Contract.

10.3 The Customer shall not be entitled to assign or transfer in whole or in part the benefit or burden of the Contract

without the Company’s prior written consent.

10.4 The rights and remedies of the Company set out in these Conditions shall be in addition to and without prejudice

to any other rights and remedies which may be available to the Company at common law or under statute.

10.5 Save as herein completely varied, nothing in the Contract affects the rights of the Customer at common law or

under statute.

10.6 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 affected.

10.7 The Contract shall in all respects be governed by and construed in accordance with the law of Scotland and the

Customer submits irrevocably to the non-exclusive jurisdiction of the Scottish Courts.