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KME Steelworks Ltd.
Standard conditions of sale worldwide. Effective on all orders accepted from 01 November 2006.
In these conditions ‘the Seller’ means the company by which the goods are sold. Other terms used in these conditions are defined in Condition 25.
(a) the Seller shall not have taken delivery, or shall not have completed the manufacture or processing, of the goods or the goods shall have been lost, destroyed or irreparably damaged after completion of manufacture or processing; and
(b) the delay is likely to continue for so long that the Buyer will need to acquire substitute goods from a source other than the Seller; and
(c) the Buyer shows to the reasonable satisfaction of the Seller that the conduct of the Buyer’s operations is likely to be seriously affected by the likely delay in delivery of the goods or that the Buyer is in peril of being in breach of a contractual obligation to a third party as a result of such delay,
then the Seller shall at the request of the Buyer agree to the cancellation of the delivery of those goods.
(b) The Seller reserves the right to charge to the Buyer any costs, charges or expenses incurred by the Seller as a result of vehicle or wagon detention or demurrage of ships in consequence of any act or omission of the Buyer, or its servants or agents, or as a result of any special requirement or stipulation not set out in the Contract Documents.
(c) Where the Contract Documents provide for delivery of the goods elsewhere than at the Seller’s site or the site of one of the Seller’s associated companies, the Seller will consider a claim by the Buyer in respect of loss or damage in transit only if the Buyer:
(i) gives notice to the Seller within 21 days after receiving an advice note or other notification of the despatch of the goods from the Seller, in the case of loss, or within 7 days after delivery of the goods in the case of damage; and
(ii) where the goods are transported by an independent freight carrier, complies in all respects with the freight carrier’s conditions of carriage for notifying claims for loss or damage in transit.
(d) (i) Any marine insurance required to be effected by the Seller under the Contract Documents shall, unless otherwise agreed in the Contract Documents, be 10% over the invoice price and shall cover the goods from the time when transit of the goods to the destination named in the Contract Documents commences, as provided and contained in the Institute of London Underwriters (‘the Institute’) Cargo Clauses, the Institute’s War Clauses and the Institute’s Strikes Clauses, current at the time of shipment.
(ii) Except as varied by these conditions or otherwise agreed in the Contract Documents, any terms defined in the relevant edition of Incoterms current at the date of the Seller’s order acknowledgment, such as CIF and CFR, shall have the meaning assigned to them by such Incoterms when used in any of the Contract Documents.
(b) Without prejudice to the foregoing, no statement or undertaking contained in any national Standard, National edition of a European Standard, ISO Standard, or other standard or technical specification as to the suitability of the goods for any purpose shall give rise to any legal liability of the Seller, except to the extent such exclusion is prevented by law. The Buyer shall satisfy itself that the goods are suitable for any product or application for which they are to be used before the goods are incorporated into such product or application.
(a) the Buyer gives notice in accordance with Condition 8 herein; or
(b) in the case of a defect in the quality or state of the goods or the goods otherwise not complying with the Contract Documents, which defect or non-compliance was apparent upon on careful inspection or reasonable testing of the goods (or would have been had a careful inspection or reasonable test been carried out), the Buyer gives the Seller a notice specifying such defect or non-compliance within 21 days after receiving the goods and in any event prior to their use or re-sale and, after doing so, gives the Seller a reasonable opportunity to inspect or test the goods before they are used or resold; or
(c) in the case of a defect in the quality or state of the goods or the goods otherwise not complying with the Contract Documents, which defect or non-compliance was not apparent upon careful inspection or reasonable testing of the goods (or would not have been had a careful inspection or reasonable test been carried out), the Buyer gives the Seller notice specifying such defect or non-compliance immediately upon discovering it and in any event not more than 12 months after receiving the goods and, after doing so, gives the Seller a reasonable opportunity to inspect the goods. The Buyer shall not be excused from providing such opportunity by reason only that the goods have been incorporated into the goods or property of a third party or that the goods are located in, upon or under the premises or land of a third party.
Any dispute between the parties as to whether any goods are defective in quality or state or otherwise not in compliance with the Contract Documents shall be referred, in accordance with the provisions of the Arbitration Acts 1950 and 1979 or any statutory modification or re-enactment thereof for the time being in force, to a single arbitrator to be agreed between the Seller and the Buyer or in default of agreement to be nominated by the President for the time being of The Law Society of England and Wales.
(a) if the Seller and the Buyer agree, the Buyer shall accept the goods at an agreed value or the goods shall be made good at the Seller’s expense; or
(b) if the Seller and the Buyer do not so agree within 21 days after the Buyer gave notice to the Seller under Condition 8 or 9 (as applicable), the Buyer may return the relevant goods to the Seller upon which the Seller shall, at the Buyer’s option either:
(i) repay the Buyer, or give the Buyer credit for, the invoice price of the goods (including freight) and any reasonable transport costs incurred by the Buyer in carrying the relevant goods from the place they were originally delivered to the Seller’s site from which they were despatched or to such other place as the Seller may nominate; or
(ii) replace the goods by delivering replacement goods to the original place of delivery as soon as may be reasonably practicable.
(b) The liability of the Seller (and its associated companies) to the Buyer in respect of:
(i) such defects or non-compliance; and
(ii) in the event that the Seller is not entitled to rely upon the provisions of clause 12(c) below, any loss, damage or expense whatsoever incurred or suffered by the Buyer (including, but without limitation, loss of profit, revenue or goodwill) howsoever such loss, damage, or expense may have been caused (including, but without limitation, any breach of contract, negligence or breach of any duty of the Seller whatsoever),
shall for all purposes (including, but without limitation, under the Contract Documents and in negligence or any other tort) be limited to the cost of making good the goods, the repayment or giving of credit for the invoice price of the goods or to the replacement of the goods in accordance with Condition 11.
(c) Under no circumstances shall the Seller (or any of its associated companies) be liable for any loss, damage or expense whatsoever incurred or suffered by the Buyer (including, but without limitation, loss of profit, revenue or goodwill) howsoever such loss, damage, or expense may have been caused (including, but without limitation, any breach of contract, negligence or breach of any duty of the Seller whatsoever) other than as set out in clause 12(a).
(d) This Condition 12 shall not apply so as to exclude or restrict the liability of the Seller for death or personal injury caused by the Seller’s negligence. (e) Clauses 12(a) to (d) (inclusive), clauses 7(a) and (b) and clauses 20(a) to (d) (inclusive) shall be construed severally and as separate contract terms. These clauses shall survive the termination of the contract for whatever cause.
(b) The Seller and the Buyer expressly agree that until the Seller has been paid in full for the goods, or any other goods comprised in any other sale contract between them, or until all other monies due from the Buyer to the Seller on any account whatsoever have been paid in full:
(i) legal and beneficial ownership of such goods remain with the Seller;
(ii) the Seller may recover all or any part of such goods at any time from the Buyer if they are in its possession and, if the amount outstanding from the Buyer to the Seller in respect of any goods supplied or any other amounts owed shall remain unpaid after the due date for payment has passed and for that purpose the Seller, its servants and agents may enter upon any land or building upon or in which such goods are situated;
(iii) the Buyer has a right to dispose of such goods (as between it and its customers only) as principal in the ordinary course of its business with such right being terminable by the Seller giving to the Buyer notice at any time and being automatically terminated (without notice) upon the happening of any of the events referred to in clause 16(d);
(iv) in the event of such disposal, the Buyer has the fiduciary duty to the Seller to account to the Seller for the proceeds but may retain from such proceeds any excess of such proceeds over the amount outstanding under this or any other sale contract between the Buyer and the Seller; and
(v) each sub-clause (ii), (iii) and (iv) shall be construed and have effect as a separate clause and accordingly in the event of any of them being for any reason whatsoever unenforceable according to its terms, the others shall remain in full force and effect.
(a) If any debt is due and payable by the Buyer to the Seller but is unpaid.
(b) If the Buyer has failed to provide any letter of credit, bill of exchange or any other security required by the Contract Documents provided that in such event the Seller’s rights of termination or suspension under this Condition shall apply only in regard to the particular contract in respect of which the Buyer shall have so failed.
(c) If the Buyer has failed to take delivery of the goods under any contract between it and the Seller otherwise than in accordance with the Buyer’s contractual rights.
(d) If the Buyer becomes insolvent or enters into any composition or arrangement (including a voluntary arrangement) with its creditors or, being a body corporate, has passed a resolution for voluntary winding up except where solely for the purpose of reconstruction or if a petition has been presented for an order for its winding up or for a receiver (including an administrative receiver) or administrator to be appointed or if any such order or appointment is made or if, being an individual or partnership, the Buyer suspends payment of his or their debts in whole or in part or if an application has been made for an interim order or a petition has been presented for a bankruptcy order or if any such order is made or if the Buyer, whether or not a body corporate, shall carry out or be subject to any analogous act or proceedings under any law.
The Seller shall be entitled to exercise its rights of termination or suspension under this Condition at any time during which the event giving rise to such rights is continuing and has not been remedied and, in the event of a suspension, the Seller shall be entitled, as a condition of resuming delivery under any contract between it and the Buyer, to require prepayment of, or such security as it may require for the payment of, the price of any further goods.
(b) Payment shall be made in the currency specified in the Contract Documents. Subject to Condition 17, that amount shall not be subject to any discount or deduction except as agreed by the Seller in the Contract Documents.
(b) Notices under any of the Contract Documents shall be sent to a party at its address or number and for the attention of the individual specified in the Contract Documents, provided that a party may change its notice details on giving notice to the other party of the change in accordance with this condition.
(b) The Buyer acknowledges that in entering into the contract it is not relying upon any pre-contractual statement which is not set out in the Contract Documents.
(c) Except in the case of fraud, no party shall have any right of action against any other party to this agreement arising out of or in connection with any pre-contractual statement except to the extent that it is repeated in the Contract Documents.
(d) For the purposes of this condition, ‘pre-contractual statement’ means any draft, agreement, undertaking, representation, warranty, promise, assurance or arrangement of any nature whatsoever, whether or not in writing, relating to the subject matter of the contract made or given by any person at any time prior to the date of this agreement.
(i) the courts of Northern Ireland are to have jurisdiction to settle any dispute arising out of or in connection with the Contract Documents; and
(ii) any proceeding, suit or action arising out of or in connection with the Contract Documents (“Proceedings”) may be brought in the Northern Irish courts.
(c) This jurisdiction agreement is for the benefit of the Seller. Seller is therefore, subject to Condition 9, to retain the right to bring Proceedings in any court which has jurisdiction other than by virtue of this jurisdiction agreement. The Buyer has, subject to Condition 9, the right to bring Proceedings only in the courts of Northern Ireland and not in any other courts.
(d) The Buyer on entering into this contract irrevocably submits to the jurisdiction of the Northern Irish courts and of any other court in which Proceedings may be brought in accordance with this clause.
‘associated company’ means, in relation to the Seller, a company:
(a) which holds or controls, directly or indirectly through another person, entity or otherwise, more than half of the shares in the Seller; or
(b) in which any such company or the Seller holds or controls, directly or indirectly through another person, entity or otherwise, more than half of the shares,
and ‘associated companies’ means all of them.
(a) these standard conditions of sale for deliveries worldwide;
(b) any order acknowledgement, or advice or despatch note given by the Seller to the Buyer in respect of the contract; and
(c) any other document, signed by or on behalf of both the Seller and the Buyer, that expressly provides it is a Contract Document for the purposes of the contract,
and ‘Contract Document’ shall mean any one of them.
‘goods’ means, in relation to each contract, the goods referred to in the Contract Documents as being sold by the Seller to the Buyer.
BY PLACING AN ORDER WITH US, YOU ARE BOUND BY THESE TERMS UNLESS AGREED OTHERWISE BY US IN WRITING. ALL STATUTORY RIGHTS APPLY AS PER THE STATUTE OF THE UNITED KINGDOM, NORTHERN IRELAND AND EUROPEAN UNION WHERE APPLICABLE. YOU SHOULD KEEP A COPY OF THESE TERMS AS WE MAY NOT.