In these terms and conditions the following words shall have the following
meanings:
‘the Company’ shall mean the corporate entity firm or person to
whom the goods are supplied by the Company.
‘Act of insolvency’ shall mean:-
1. If the Buyer (being a Company):-
1.1 has a petition presented for its winding up: or
1.2 passes a resolution for Voluntary winding up, or
1.4 Compounds with its creditors; or
1.5 has a receiver manager of administration receiver appointed of all or ant
part of its assets.
2. If the Buyer (being an individual):-
2.1 becomes bankrupt or insolvent: or
2.2 enters into any arrangements with creditors: or
2.3 takes or suffers any similar action in consequences of debts; or
2.4 carries out or undergoes any analogous act or convenience only and shall
have no effect on the interpretation thereof.
Headings
The headings of these terms and conditions are for convenience only and shall
have no effect on the interpretation thereof.
Making the Contract.
3.1 The estimate which the Company provides to the buyer comprises an invitation
to treat which is open for a period of 30 days only from the date thereof,
provided that the Company has not previously withdrawn it. Any order issued
by the Buyer is subject to acceptance by the Company and a contract will only
be formed when the company has accepted the buyers offer to buy it in writing.
3.2 All orders are placed under these terms and conditions alone.
3.3 These terms and conditions exclude any other terms and conditions inconsistent
therewith which a Buyer might seek to impose even thought such other terms
and conditions may be admitted in a later document or purport to exclude or
supersede any terms and conditions inconsistent with them or may be contained
in any other acceptance or counter-offer made by the buyer.
3.4 No variation of these terms and conditions is permitted unless expressly
agreed by a director or the Company in writing.
Cancellation
No cancellation by the Buyer is permitted except where expressly agreed
by a director of the Company in writing:
The Buyer will in the event of agreed cancellation by the buyer indemnify
the Company fully against all expenses incurred up to the time of such
cancellation together with by the way liquidated damages a sum of 10% of
the contract price which shall be paid by the Buyer to the Company forthwith.
Price
All prices quoted are those ruling at the date of delivery of the goods.
Unless otherwise stated all prices are nett ex works exclusive of VAT.
The Company reserve the right at any time prior to delivery of the goods
to adjust the price to take account of any increase in the cost of raw
materials.
Terms of Payment
Unless the Company otherwise agrees in writing all sums become due and
payable under these terms and conditions within 30 days from the end of
the month in which the goods are delivered.
Time for payment shall be of the essence.
The Company reserves the right to charge interest at 3% per annum above
the base lending rate of National Westminster Bank Plc from time to time
on all overdue accounts such interest being deemed to accrue on a day to
day basis from the due date for payment under clause 6.1
The Buyer shall have no right of set off.
If the Buyer shall commit an Act of Insolvency then it/he will be deemed
to have repudiated the Contract.
The Company reserves the right at any time at its discretion to demand
security for payment before continuing with or delivering any order.
Delivery
Delivery will be deemed to have effected when the Goods leave premises
of the Company or as the case may be the premises of the suppliers to the
company in circumstances where the Goods are delivered direct from such
suppliers.
Time of delivery in not essence.
The Company shall not be liable for any loss whatsoever arising caused
by its non-delivery or by the failure to make goods ready for cancellation
on the due date.
The Company reserve the right to make delivery by instalments and to
tender a separate invoice in respect of each instalment.
When delivery is to be by instalments or the Company exercises its right
to deliver by instalments under clause 7.4 hereof or if there be delay
in delivery of any one or more instalments for whatever reason this will
not entitle the Buyer to treat the contract as repudiated or to damages.
Deviations in quality of the goods delivered (representing not more that
10 per cent by value from that stated in these terms and conditions shall
not give the Buyer any right to reject the Goods or to claim damages and
the Buyer shall be obliged to accept and pay at the contract rate for the
quantity of the goods delivered.
When delivery is refused by the Buyer of is delayed suspended or made
by instalments at the request of the Buyer where the Company is unable
to deliver the Goods due to circumstances beyond its reasonable control,
the company on giving notification of its readiness to deliver shall be
entitled to treat the contract as fulfilled and shall place the goods into
store. Delivery will be deemed to have taken place invoicing payment and
the passing risk. The cost of storage and insurance of the goods shall
be for the Buyers account.
Risk and the passing of Property
Risk in the shall pass to the Buyer when the Goods are delivered to,
or collected by, the Buyer or its agent.
Notwithstanding risk in the Goods passing in accordance with clause 8.1
hereof title in the goods shall not pass the buyer until whichever shall
be the first to occur of the following :-
payment being received by the company for the Goods and no other amounts
then being outstanding from the Buyer to the Company for the goods supplied
by the Company :
the Buyer selling the Goods in accordance with the provisions of these
terms and conditions in which case title to the Goods shall be deemed
to have passed to the buyer immediately prior to delivery of the Goods
to the Buyer’s customers:
the company waiving its rights under this clause 8.2 in respect of
specified Goods whereupon title to said goods shall forthwith vest in
the Buyer.
The Buyer is licensed to incorporate the goods in or use the Good as
material for other goods or products (the new goods). Where the goods are
severable after such incorporation or use, the Company reserves the right
to sever and remove the same. Where the goods are not so severable. Material
for other goods or products the New Goods shall be and be deemed to be
owned legally and beneficially by the Company (but shall not be at the
Company’s risk) and any other owner of the New Goods in common with
that owner. The Company’s rights under this clause shall be limited
to the proportion necessary to recoup the money owed to it in respect of
the goods.
The Buyer is licensed by the Company to use or agree to sell the Goods
of the New Goods subject to the express conditions that the entire proceeds
of any sale are held in a trust for the Company and are not mixed with
other moneys or paid into an overdrawn account and shall at all times be
identifiable as the Company’s moneys.
Until title to the goods or the New Goods passes:-
the Buyer will hold the Goods or the new Goods as fiduciary agent and
bailee for the Company ;
The goods or the new Goods shall, subject to clause 8.3, be kept separate
and distinct from all other property of the Buyer and of third parties
and in good and substantial repair and condition and be stored in such
a way as to be clearly identifiable as belonging to the Company.
The company may at any time revoke the power of sale and us contained
in clause 8.3 by notice to the Buyer if the Buyer is in default for longer
that 14 days in the payment of any sum whosoever due to the company whether
is respect of the Goods, the New Goods or an other goods supplied at
any time by it to the Buyer of if the company gas bona fide doubts as
to the solvency of the Buyer.
The Buyers power of sale and use contained in clause 8.3 shall automatically
cease if the Buyer commits an act of insolvency.
Upon Determination of the Buyers power of sale and use to pursuit to
clause 8.3 or clause 4 the buyer shall place any of the goods or New
Goods in his possession or under its control and unsold at the disposal
of the Company and the Company shall be entitled to enter upon any premises
of the Buyer for the purpose of removing such Goods or the new Goods.
The Company shall at any time be entitled to appropriate any payment
made by Buyer in respect of any of the Goods as the Company may in its
absolute discretion think fit notwithstanding any purported appropriation
to the contrary by the Buyer.
Lien and Stoppage
Until such time as the lien in the Goods has passed to the Buyer the
Company has the right to withhold delivery if the Buyer commits an Act
of insolvency from the Company has.
9.2.1 A Lien on the Goods so long as the Company is in possession of them:
9.2.2 a right of stoppage in transit
9.2.3 a right or resale
9.3 For the avoidance of doubt it is hereby declared that nothing in this clause
shall affect the rights given to the Company by ss 38-48 of the Sale of Goods
Act 1979 of any statutory amendment or re- enactment thereof.
Inspection Shortages
The Buyer is under a duty wherever possible to inspect the Goods on
delivery or on collection as the case may
be.
Where the Goods cannot be examined the carriers note or such other
notes as appropriate shall be marked ‘not
examined’
The Company shall be under no liability for any defects or shortages
that would be apparent on careful inspection or if the terms of this clause
are not delivered to the Company within 7 days of delivery detailing the
alleged defect or shortage.
In all cases where defects or shortage are complained of the Company
shall be under no liability in respect thereof unless an opportunity to
inspect the Goods is supplied to the Company before and use is made of
the Goods or any alteration or modification is made to them by the Buyer.
Subject to clause 10.3 and clause 10.4 the Company shall make good any
shortage in the Goods and where appropriate replace any Goods damaged in
transit as soon as it is reasonably able to do so, but otherwise shall
be under whatsoever or howsoever arising for such shortage or damage.
Warranty
The Company warrants that is has title to the unexamined right to sell
the Goods.
No representation or warranty is given as to the suitability of fitness
of the Goods for any particular purpose and the Buyer shall satisfy himself
in this respect and shall be totally responsible therefore.
If the goods are in such a state as would but for this condition entitle
the Buyers to repudiate the contract or claim damages from the Company
the Company reserves the right to repair or replace the Goods.
Liability
12.1 Introduction
12.1.1 Nothing in clause 12 shall be deemed to exclude or restrict the Company’s
liability for death or personal injury resulting from negligence.
12.1.2 Each of the sub-clauses 12 is to be treated as separate and independents.
12.1.3 The Company is willing to undertake liability additional to that provided
by this clause in exchange fro higher price.
12.2 Exclusion
12.2.1 Clause 12.2 only covers defects caused by faulty design, manufacture,
materials or workmanship. It does not cover defects caused by abnormal use,
misuse or neglect.
12.2.2 The Company agrees that if any defect covered by clause 12.2 is discovered
during the period twelve months commencing with the date of despatch, the Company
will either repair the goods at its own expense, or if it chooses to so replace
them.
12.2.3 The Buyer cannot claim the benefit of this clause unless:-
12.2.4 The risk of accidental loss whilst the goods are being returned will
be born by the buyer.
12.2.5 In consideration for receiving the benefit of this clause, the Buyer
agrees that, apart from those terms set out in clauses 10 and 11, no other
terms, whether conditions, warranties or innominate terms, express or implied
statutory or otherwise shall form part of this contract.
12.3 Exclusion of Consequential Loss
The Company shall not be liable for any consequential of indirect loss suffered
by the Buyer whether this loss arises from breach of a duty in contract or
tort or in any other (including loss arising from Company’s negligence).
Non- exhaustive illustration or consequential or indirect loss would be:
loss of profits
loss of contracts
damage to property of the buyer or anyone else: and
personal injury to the Buyer or anyone else and
personal injury to the Buyer or anyone else (except so far as such injury
is attributable to the company’s negligence)
12.4 Limitation
The company’s total liability for any one claim or for the total of all
claims arising from any one act or default of the Company (whether arising
from the Company’s negligence or otherwise) shall not exceed £100.000
or the contract price whichever is the greater.
Force Majeure
The Company shall not be liable for any failure to deliver the goods
arising from circumstances outside the company’s control
Non- exhaustive illustration of such circumstances would be act of god,
war, riot, explosion , abnormal whether conditions, fire, flood, strikes
, lockouts, government action or regulations ( U.K or otherwise) delay
by suppliers, accidents and shortage or material, labour or manufacturing
facilities.
Should the company be prevented from delivering in the above circumstances,
it shall give the Buyer notice of this fact as soon as reasonably practicable
after discovering it.
I the circumstances preventing delivery are still continuing three months
after the Buyer receives the company’s notice to the other cancelling
the contract.
If the contract is cancelled in this way, the company will refund any
payment which the Buyer has already made on account of the price (subject
to deduction to any amount the Company is entitled to claim from the Buyer)
but the Company will not be liable to compensate the Buyer for any further
loss or damage caused by the failure to deliver.
Sales Promotion Documentation
Whilst the Company takes every precaution in the preparation of its catalogues,
technical circulars, price lists and its other literature, these documents
are not for the Buyers general guidance only and the particulars contained
therein shall not constitute representation by the Company and Company shall
not be bound thereby.
Notices
Any notice given hereunder shall be in writing and shall be deemed to have
been duly given if sent or delivered to the party concerned at its address
specified overleaf or such other address as that party may from time notify
in writing and shall be deemed to have been served, if sent by post 48 hours
after posting.
Assignments
Neither the Company nor the Buyer shall assign or transfer or purport to assign
or transfer the contract or the benefits thereof to any other person without
the prior written consent of the other.
Proper Law and Jurisdiction
The contract shall be governed by and construed in accordance with English
law and all disputes arising in connection with the contract be submitted to
the jurisdiction of the English Courts.
