1.1 The definitions and rules of interpretation in this clause apply in these conditions.
Contract: the Customer’s order and Galloway’s acceptance of it in accordance with condition 3.3.
Customer: the person, firm or company who purchases Goods from Galloway.
Galloway: means Galloway Group Limited (a company registered in Scotland under company registration number SC036181) and having its registered office at Arrol Road, Wester Gourdie Industrial Estate, Dundee, ANGUS, DD2 4TH
Goods: means any goods agreed in the Contract to be bought by the Customer from Galloway (including any part or parts of them).
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Premises: means Galloway Group Limited premises at Arrol Road, Wester Gourdie Industrial Estate, Dundee, DD2 4TH or such other place as may be notified by Galloway to the Customer.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Condition headings do not affect the interpretation of these conditions.
1.3 A reference to a law is a reference to it as it is in force for the time being
taking account of any amendment, extension, application or re-enactment and
includes any subordinate legislation for the time being in force made under it.
2.1 These conditions shall:
2.1.1 apply to and be incorporated in the Contract; and
2.1.2. prevail over any inconsistent terms or conditions contained in or
referred to in the Customer’s purchase order, confirmation of order,
or specification, or implied by law, trade custom, practice or course
of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of
the Contract shall be binding on Galloway unless in writing and signed by a
duly authorised representative of Galloway.
3.1 Any quotation is valid for a period of 30 days only, and Galloway may
withdraw it at any time by notice to the Customer.
3.2 Each order or acceptance of a quotation for Goods by the Customer shall be
deemed to be an offer by the Customer subject to these conditions. The
Customer shall ensure that its order is complete and accurate.
3.3 A binding contract shall not come into existence between Galloway and the
Customer unless and until Galloway issues a written order acknowledgement
to the Customer, or Galloway delivers Goods to the Customer (whichever
occurs earlier).
3.4 Galloway may deliver the Goods by separate instalments. Each separate
instalment shall be invoiced and paid for in accordance with the provisions of
the applicable Contract. Each instalment shall be a separate Contract and no
cancellation or termination by either party of any one Contract relating to an
instalment shall entitle the Customer to repudiate or cancel any other
Contract or instalment.
3.5 No order which has been acknowledged by Galloway may be cancelled by
the Customer, except with the agreement in writing of Galloway and provided
that the Customer indemnifies Galloway 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 Galloway as a result of cancellation.
4.1 Galloway reserves the right to sub-contract any part or parts of the Contract.
5.1 The quantity and description of the Goods shall be as set out in Galloway’s
acknowledgement of order or (if there is no acknowledgment of order)
5.2 All samples, drawings, descriptive matter, specifications and advertising
issued by Galloway, and any descriptions or illustrations contained in
Galloway’s catalogues or brochures are issued or published for illustrative
purposes only and they do not form part of the Contract.
5.3 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 Galloway shall be subject to correction without any
liability on the part of Galloway.
5.4 Galloway reserves the right (but does not assume the obligation) to make any
changes in the specification of the Goods which are required to conform with
any applicable legislation or, where the Goods are to be supplied to the
Customer’s specification, which do not materially affect their quality or
performance. Where Galloway is not the manufacturer of the Goods,
Galloway shall use reasonable endeavours to transfer to the Customer the
benefit of any warranty or guarantee given by the manufacturer to Galloway.
5.5 Galloway’s employees, contractors and agents are not authorised to make
any contractually binding representations concerning the Goods. In entering
into the Contract, the Customer acknowledges that it does not rely on, and
waives any claim for breach of, any such representations which have not
been confirmed in writing by an authorised officer of Galloway. However,
nothing in these conditions limits Galloway’s liability for fraudulent
5.6 Any advice or recommendation given by Galloway or its employees,
contractors or agents to the Customer or its employees, contractors or agents
about the storage, application or use of the Goods which is not confirmed in
writing by an authorised officer of Galloway is followed or acted on entirely at
the Customer’s own risk.
6.1 All prices shall be as stated in Galloway’s acknowledgement of order. All
prices are exclusive of delivery if not to the Premises, packing, shipping,
carriage, insurance, VAT and other charges and duties.
6.2 The price for the Goods is based on the rate prevailing at the date of
Galloway’s acknowledgement of the order and Galloway may increase the
price to cover any increases due to market conditions (including, but not
limited to, increases in foreign exchange rates relating to the Goods, or in
labour, materials, supply or transportation costs) which affect Galloway at the
date of delivery.
6.3 The price of the Goods shall be Galloway’s quoted price or, where no price
has been quoted (or a quoted price is no longer valid), the price listed in
Galloway’s order acknowledgement current at the date of acceptance of the
order. The price listed in Galloway’s order acknowledgement shall apply to
exports of Goods as appropriate.
6.4 Galloway reserves the right, by giving notice to the Customer at any time
before delivery, to increase the price of such of the Goods as has not been
delivered to reflect any increase in the cost to Galloway which is due to any
factor beyond the control of Galloway (including any foreign exchange
fluctuation, taxes, currency regulation, alteration of duties, change in
legislation, significant increase in the costs of labour, materials or other costs
of manufacture), any change in delivery dates, quantities or specifications for
Goods which is requested by the Customer, or any delay caused by any
instructions of the Customer or failure of the Customer to give Galloway
adequate information or instructions.
7.1 Subject to any special terms agreed in writing between the Customer and
Galloway, Galloway may invoice the Customer for the price of the Goods
before delivery of the Goods.
7.2 Galloway shall be entitled to invoice the Customer for the price at any time
after Galloway has notified the Customer that the Goods are ready for
7.3 The terms of payment shall be:
7.3.1 in the case of Goods delivered in the United Kingdom, if the
customer has an approved credit account, unless otherwise agreed,
payment is due within 30 days from the end of the month that
Galloway’s invoice was raised, whether or not delivery has taken
place or title in the Goods has passed to the Customer; and
7.3.2 in the case of export sales, in accordance with condition10.5.
7.4 Time for payment of the price shall be of the essence of the Contract.
7.5 If the Customer fails to make payment in full on the due date, the whole of the
balance of the price of the Goods then outstanding shall become immediately
due and payable and, without prejudice to any other right or remedy available
to Galloway, Galloway may:
7.5.1 terminate the Contract or suspend any further deliveries of Goods
(whether ordered under the same contract or not) to the Customer;
7.5.2 appropriate any payment made by the Customer to such of the
Goods (or the Goods supplied under any other contract between the
Customer and Galloway) as it thinks fit (despite any purported
appropriation by the Customer);
7.5.3 charge interest on the amount outstanding from the due date to the
date of receipt by Galloway (whether or not after judgment), at the
annual rate of 3 % above the London Interbank Base Rate, accruing
on a daily basis and being compounded quarterly until payment is
made, whether before or after any judgment. Galloway reserves the
right to claim interest under the Late Payment of Commercial Debts
(Interest) Act 1998;
7.5.4 suspend all further manufacture, delivery, installation or warranty
service until payment has been made in full.
7.5.5 make a storage charge for any undelivered Goods at its current
rates from time to time;
7.5.6 stop any Goods in transit; and
i. place a general lien on all Goods and property belonging to the
Customer, exercisable in respect of all sums lawfully due from
the Customer to Galloway. Galloway shall be entitled, on the
expiry of 14 days’ notice in writing, to dispose of such Goods or
property in such manner and at such price as it thinks fit and to
apply the proceeds towards the amount outstanding.
7.6 All sums payable to Galloway under the Contract shall become due
immediately on its termination without any right of the Customer to
compensation or set-off or counterclaim, despite any other provision of the
Contract, and will be calculated and payable in Pounds Sterling unless
otherwise specified by Galloway to the Customer in writing. This condition 7.6
is without prejudice to any right to claim for interest under the law, or any right
under the Contract.
7.7 Galloway may, without prejudice to any other rights it may have, set off any
liability of the Customer to Galloway against any liability of Galloway to the
7.8 Where there is a deferred delivery date or a Contract is agreed with the
Customer requiring deliveries of Goods over a period of more than four
weeks, Galloway may submit interim invoices to the Customer for work done
and such invoices will be payable in accordance with the terms of this
condition 7.
8.1 Galloway shall use its reasonable endeavours to deliver the Goods on the
date or dates specified in Galloway’s acknowledgement of order to the
Premises, but any such date is approximate only. If no dates are so
specified, delivery shall be within a reasonable time of acceptance of the
order. Time is not of the essence as to the delivery of the Goods and
Galloway is not liable for any delay in delivery, however caused.
8.2 The Goods may be delivered by Galloway in advance of the quoted delivery
date on giving reasonable notice to the Customer.
8.3 Delivery shall be made during normal business hours (excluding bank or
public holidays). Galloway may levy additional charges for any deliveries
made outside such hours at the Customer’s request.
8.4 In the event that the Customer wishes delivery to take place at a location
other than at the Premises, then the Customer shall be responsible (at the
Customer’s cost) for preparing the delivery location for the delivery of the
Goods and for the provision of all necessary access and facilities reasonably
required to deliver and if necessary install the Goods. If Galloway is
prevented from carrying out delivery or installation on the specified date
because no such preparation has been carried out, Galloway may levy
additional charges to recover its loss arising from this event.
8.5 The Customer shall be deemed to have accepted the Goods when the
Customer has had three days to inspect it after delivery and has not
exercised in writing its right of rejection in accordance with condition 11.
8.6 Galloway shall be responsible for any damage, shortage or loss in transit,
provided that the Customer notifies it to Galloway (or its carrier, if applicable)
within three days of delivery or the proposed delivery date of the Goods and
that the Goods have been handled in accordance with Galloway’s
stipulations. Any remedy under this condition 8.6 shall be limited, at the option
of Galloway, to the replacement or repair of any Goods within a reasonable
period and which Goods are proven to Galloway’s satisfaction to have been
lost or damaged in transit. Where the Customer insists on its own carrier or
authorises Galloway to contract with any carrier on behalf of the Customer,
the Customer acknowledges that Galloway will have no liability if the Goods
are lost or damaged in the course of transit.
9.1 The Goods shall be at the risk of Galloway until delivery to the Customer at
the place of delivery specified in the Galloway’s acknowledgement of order or
transport delivery notes. The place of delivery specified in the transport
delivery notes shall take precedence over any place specified in the
acknowledgement of order where there are any delivery address changes
after Galloway have issued their acknowledgement of order. The Customer
shall off-load the Goods at the Customer’s risk unless otherwise agreed and
9.2 Ownership of the Goods shall pass to the Customer on the later of completion
of delivery (including off-loading), or when Galloway has received in full in
cleared funds all sums due to it in respect of:
9.2.1 the Goods; and
9.2.2 all other sums which are or which become due to Galloway from the
Customer on any account.
9.3 Until ownership of the Goods has passed to the Customer under condition
9.2, the Customer shall:
9.3.1 hold the Goods on a fiduciary basis as Galloway’s bailee;
9.3.2 store the Goods (at no cost to Galloway) in satisfactory conditions and
separately from all the Customer’s other Goods or that of a third party,
so that it remains readily identifiable as Galloway’s property;
9.3.3 not destroy, deface or obscure any identifying mark or packaging on or
relating to the Goods; and
9.3.4 keep the Goods insured on Galloway’s behalf for their full price against
all risks to the reasonable satisfaction of Galloway, and hold the
proceeds of such insurance on trust for Galloway and not mix them
with any other money, nor pay the proceeds into an overdrawn bank
9.3.5 not sell on the Goods upon any price, terms and conditions attaching
to such a sale without Galloway’s prior written permission to do so
(“authorised sale”). The Customer will hold the proceeds of an
authorised sale on trust within an account specified by Galloway. The
Customer shall not hold out as an agent/employee or in any other way
acting on behalf of Galloway in an authorised sale without the prior
written permission from Galloway. All risks, liabilities attaching to an
authorised sale whatsoever including under any common law or
statute shall be solely at the risk of the Customer.
9.4 The Customer’s right to possession of the Goods before ownership has
passed to it shall terminate immediately if any of the circumstances set out in
condition 15 arise or if the Customer encumbers or in any way charges the
Goods, or if the Customer fails to make any payment to Galloway on the due
9.5 The Customer grants Galloway, its agents and employees an irrevocable
licence at any time to enter any premises where the Goods are or may be
stored in order to inspect them, before ownership of the Goods has passed to
the Customer, or where the Customer’s right to possession has terminated, to
remove them. All costs incurred by Galloway in repossessing the Goods shall
be borne by the Customer.
9.6 On termination of the Contract for any reason, Galloway’s (but not the
Customer’s) rights in this condition 9 shall remain in effect.
9.7 Galloway may appropriate payments by the Customer to such Goods as it
thinks fit, notwithstanding any purported appropriation by the Customer to the
contrary, and may make such appropriation at any time.
10.1 Where the Goods are supplied for export from the United Kingdom, the
provisions of this condition 10 shall (subject to any contrary terms agreed in
writing between the Customer and Galloway) override any other provision of
these conditions.
10.2 The Customer shall be responsible for complying with any legislation
10.2.1 the importation of the Goods into the country of destination; and
10.2.2 the export and re-export of the Goods,
and shall be responsible for the payment of any duties on the Goods.
10.3 Unless otherwise agreed in writing between the Customer and Galloway,
Goods shall be delivered upon their collection by the Customer from the
Premises or any other location that we may specify and agree upon with the
Customer in writing. Galloway shall be under no obligation to give notice in
case of air or sea shipment and under section 32(3) of the Sale of Goods Act
10.4 Galloway shall be responsible for arranging for the inspection of the Goods at
Galloway’s or Galloway’s sub-contractor’s premises before collection or
10.5 Payment of all amounts due to Galloway shall be made by irrevocable letter
of credit opened by a Customer in favour of Galloway and confirmed by a
bank in the United Kingdom acceptable to Galloway.
10.6 The Customer shall pay the price for the Goods in pounds sterling.
11.1 Galloway warrants to the Customer that the Goods are free from defects of
workmanship and materials. Galloway undertakes (subject to the remainder
of this condition 11), at its option, to repair or replace Goods (other than
consumable items) which are found to be defective as a result of faulty
materials or workmanship within twelve months of delivery and installation.
The carriage costs of allegedly defective Goods and the costs of their return
to the Customer shall be met by the Customer. Any associated call-out costs
and/or inspection charges shall also be met by the Customer unless the
allegation of defective Goods is founded, in which case Galloway reserves
the right to refund the Customer the price of the Goods instead of repairing or
replacing the Goods.
11.2 Galloway shall not be liable for a breach of the warranty contained in
condition 11.1 unless:
11.2.1 the Customer gives written notice of the defect to Galloway within
seven days of the time when the Customer discovers or ought to
have discovered the defect; and
11.2.2 after receiving the notice, Galloway is given a reasonable opportunity
of examining such Goods and the Customer (if asked to do so by
Galloway) returns such Goods to Galloway’s place of business at the
Customer’s cost for the examination to take place there.
11.3 Galloway shall not be liable for a breach of the warranty in condition 11.1 if:
11.3.1 the Customer makes any use of Goods in respect of which it has
given written notice under condition 11.2.1; or
11.3.2 the defect arises because the Customer failed to follow Galloway’s
oral or written instructions as to the storage, installation,
commissioning, use or maintenance of Goods or (if there are none)
good trade practice; or
11.3.3 the Customer alters or repairs the relevant Goods without the written
consent of Galloway.
11.4 Any repaired or replacement Goods shall be under warranty for the unexpired
portion of the twelve month period.
11.5 Galloway shall not be liable for any damage or defect to the Goods caused by
improper use of Goods or use outside its normal application.
11.6 Galloway does not warrant the suitability of the Goods for any use or purpose
except where any use or purpose has been specified in writing by Galloway to
the Customer.
12.1 Galloway shall not be liable for any non-delivery of Goods (even if caused by
Galloway’s negligence) unless the Customer notifies Galloway in writing of
the failure to deliver within seven days after the scheduled delivery date.
12.2 Any liability of Galloway for non-delivery of the Goods shall be limited to
replacing the Goods within a reasonable time or issuing a credit note at the
pro rata contract rate against any invoice raised for such Goods.
12.3 If Galloway’s performance of its obligations under the Contract is prevented or
delayed by any act or omission of the Customer (other than by reason of a
Force Majeure Event under condition 16), the Customer shall be liable to pay
to Galloway all reasonable costs, charges, expenses or losses sustained by it
as a result, subject to Galloway notifying the Customer in writing of any such
claim it might have against the Customer in this respect.
12.4 In the event of any claim by the Customer under the warranty given in
condition 11.1, the Customer shall notify Galloway in writing of the alleged
defect. Galloway shall have the option of inspecting the Goods at their current
location or moving them to Galloway’s premises (or those of its agent or subcontractor)
at the cost of Galloway. If the Customer’s claim is subsequently
found by Galloway to be outside the scope or duration of the warranty in
condition 11, the costs of transportation of the Goods, investigation and repair
shall be borne by the Customer.
12.5 Galloway may appoint a third party to act on its behalf to recover any sums
owed by the Customer under the Contract.
13.1 The following provisions set out the entire financial liability of Galloway
(including any liability for the acts or omissions of its employees, agents and
sub-contractors) to the Customer in respect of:
13.1.1 any breach of the Contract; and
13.1.2 any representation, statement or tortious act or omission (including
negligence) arising out of or in connection with the Contract.
13.2 All warranties, conditions and other terms implied by statute or common law
are excluded from the Contract to the fullest extent permitted by law.
13.3 Nothing in these conditions excludes or limits the liability of Galloway for:
13.3.1 death or personal injury caused by Galloway’s negligence; or
13.3.2 fraud or fraudulent misrepresentation.
13.4 Subject to condition 13.2 and condition 13.3:
13.4.1 Galloway shall not be liable, whether in tort (including for negligence
or breach of any statutory duty), contract, misrepresentation or
otherwise for: loss of profits; or
11 loss of business; or depletion of goodwill or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or any special, indirect, consequential or pure economic loss,
costs, damages, charges or expenses.
13.4.2 Galloway’s total liability in contract, tort (including negligence or breach
of any statutory duty), misrepresentation, restitution or otherwise,
arising in connection with the performance or contemplated
performance of the Contract shall be limited to the invoice price of the
Goods in question.
14.1 If Galloway manufactures the Goods, or applies any process to it, in
accordance with a specification submitted or prepared by the Customer or
any other information provided by the Customer, the Customer shall
indemnify and keep indemnified Galloway against all losses, damages, costs,
claims, demands, liabilities and expenses (including without limitation
consequential losses, loss of profit and loss of reputation, and all interest,
penalties and legal and other professional costs and expenses) awarded
against or incurred by Galloway in connection with, or paid or agreed to be
paid by Galloway in settlement of, any claim for infringement of any third party
Intellectual Property Rights which results from Galloway’s use of the
Customer’s specification or such other information. The indemnity shall apply
whether or not the Customer has been negligent or at fault and does not limit
any further compensation rights of Galloway.
14.2 The Customer acknowledges that all Intellectual Property Rights used by or
subsisting in the Goods are and shall remain the sole property of Galloway or
(as the case may be) third party rights, owner.
14.3 Galloway shall retain the property and copyright in all documents supplied to
the Customer in connection with the Contract and it shall be a condition of
such supply that the contents of such documents shall not be communicated
either directly or indirectly to any other person, firm or company without the
prior written consent of Galloway.
15.1 Without prejudice to any other right or remedy available to Galloway,
Galloway may terminate the Contract or suspend any further deliveries under
the Contract without liability to the Customer 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 if:
(a) the ability of the Customer to accept delivery of the Goods is
delayed, hindered or prevented by circumstances beyond the
Customer’s reasonable control; or
(b) an order is made or a resolution is passed for the winding up of the
Customer, or circumstances arise which entitle a court of competent
jurisdiction to make a winding-up order in relation to the Customer; or
(c) an order is made for the appointment of an administrator to manage
the affairs, business and property of the Customer, or documents are
filed with a court of competent jurisdiction for the appointment of an
administrator of the Customer, or notice of intention to appoint an
administrator is given by the Customer or its directors or by a
qualifying floating charge holder (as defined in paragraph 14 of
Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the Customer’s assets or
undertaking, or if circumstances arise which entitle a court of
competent jurisdiction or a creditor to appoint a receiver or manager
of the Customer, or if any other person takes possession of or sells
the Customer’s assets; or
(e) the Customer makes any arrangement or composition with its
creditors, or makes an application to a court of competent jurisdiction
for the protection of its creditors in any way, or becomes bankrupt; or
(f) the Customer ceases, or threatens to cease, to trade; or
(g) the Customer takes or suffers any similar or analogous action in any
jurisdiction in consequence of debt.
15.2 Termination of the Contract, however arising, shall not affect or prejudice the
accrued rights of the parties as at termination or the continuation of any
provision expressly stated to survive or implicitly surviving termination.
Galloway reserves the right to defer the date of delivery, or to cancel the
Contract or reduce the amount of Goods ordered, if it is prevented from or
delayed in carrying on its business by acts, events, omissions or accidents
beyond its reasonable control, including without limitation strikes, lock-outs or
other industrial disputes (whether involving the workforce of Galloway or any
other party), failure of a utility service or transport network, act of God, war,
riot, civil commotion, malicious damage, compliance with any law or
governmental order, rule, regulation or direction, accident, breakdown of plant
or machinery, fire, flood, storm or default of Galloway or sub-contractors
(“Force Majeure Event”).
17.1 A waiver of any right under the Contract is only effective if it is in writing and
signed by or on behalf of the waiving party, and it applies only to the party to
whom the waiver is addressed and the circumstances for which it is given.
17.2 Galloway’s rights arising under the Contract are cumulative and do not
exclude its rights provided under common law or statute.
18.1 If any provision of this agreement (or part of a provision) is found by any court
or administrative body of competent jurisdiction to be invalid, unenforceable
or illegal, the other provisions shall remain in force.
19.1 The Customer shall not, without the prior written consent of Galloway, assign,
transfer, charge, sub-contract or deal in any other manner with all or any of its
rights or obligations under the Contract.
19.2 Galloway may at any time assign, transfer, charge, sub-contract or deal in
any other manner with all or any of its rights or obligations under the Contract.
20.1 The Contract is made for the benefit of the parties to it and (where applicable)
their successors and permitted assigns, and is not intended to benefit, or be
enforceable by, anyone else.
20.2 The Customer warrants that use by Galloway of any document furnished by
the Customer to Galloway to fulfil a Contract, will not infringe in any way the
rights of any third party, and that the Customer will fully indemnify Galloway in
the event of any third party action in relation to the use of such
20.3 Any relief sought by the Customer from Galloway in relation to any third party
action against the Customer relating to the Goods will be limited to the invoice
price of the Goods in question.
20.4 Where the Customer becomes the subject of a third party action in relation to
Goods not manufactured or supplied by Galloway under the Contract, the
Customer undertakes not to action against Galloway and will only action
against the relevant manufacturer or supplier where it is competent to do so
and only in full consultation with Galloway.
21.1 Any notice required to be given pursuant to this agreement shall be in writing
and shall be delivered by hand or sent by pre-paid first-class post or recorded
delivery post to the address of the party as set out in these conditions, or
such other address as may be notified by one party to the other. A notice
delivered by hand is deemed to have been received when delivered (or, if
delivery is not in business hours, 9.00 am on the first business day following
delivery). A correctly addressed notice sent by pre-paid first-class post or
recorded delivery post shall be deemed to have been received at the time at
which it would have been delivered in the normal course of post.
22.1 The Contract and any disputes or claims arising out of or in connection with
its subject matter are governed by and construed in accordance with the law
of England.
22.2 The parties irrevocably agree that the courts of England have exclusive
jurisdiction to settle any dispute or claim that arises out of or in connection
with the Contract.