The adherents to these Terms of Sale are referred to throughout as “the seller” and “the buyer”. All transactions are between the seller and the Buyer as principals and are subject to the following provisions.
- CONDITIONS APPLICABLE
2.1 These conditions shall apply to all contracts for the sale of goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms and conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document.
2.2 All orders for goods shall be deemed to be an offer by the Buyer to purchase goods pursuant to these conditions
2.3 Acceptance of delivery of the goods shall be deemed conclusive evidence of the Buyer’s acceptance of the conditions.
2.4 Any variation of these conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the seller.
No oral quotation will be binding on the seller.
- PASSING OF PROPERTY
4.1 In spite of delivery having been made property in the goods shall not pass from the seller until:
- the buyer shall have paid the price plus VAT in full and
- no other sums whatever shall be due from the Buyer to the Seller
4.2 Until property in the goods passes to the Buyer in accordance with Clause 4.1 the Buyer shall hold the goods and each of them on a fiduciary basis as bailee for the Seller. The Buyer shall store the goods (at no cost to the seller) separately from all other goods in its possession and marked in such way that they are clearly identified as the seller’s property.
4.3 Notwithstanding that the goods (or any of them) remain the property of the Seller the Buyer may sell or use the goods in the ordinary course of the Buyer’s business at full market value for the account of the Seller. Any sub sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s behalf and the Buyer shall deal as principal when making such sales or dealings.
4.4 The Seller be entitled to recover the price (plus VAT) notwithstanding the property in any goods has not passed from the Seller.
4.5.1 Until such time as property in the goods passes the Seller to the Buyer the Buyer shall upon request deliver up such of the goods as have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned, occupied or controlled by the Buyer where it believes the goods are situated and repossess the goods. On the making of such a request the rights of the Buyer under clause 4.3 shall cease.
4.5.2 If the Seller exercises his rights under the last preceding sub clause the Buyer hereby grants to the Seller express authority to enter upon any premises where the goods are situated for the purpose of repossessing the goods.
4.6 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
4.7 The Buyer shall insure and keep insured the goods to the full price against all risks to the reasonable satisfaction of the Seller until the date that property in the goods passes from the Seller and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
4.8 In the event of any goods having been paid for by the Buyer and other goods not having been so paid, the onus of proof shall be on the Buyer to show that any goods remaining in its possession are goods for which it has paid.
- PASSING OF RISK
The risk in the goods supplied over land shall pass to the Buyer on the delivery to the Buyer’s designated premises or to the carrier nominated by him whichever shall first occur. The risk in goods supplied by sea or air transport shall pass to the buyer on delivery to the carrier nominated by the Buyer in which case the Seller may at the Buyer’s written request, cost and risk arrange for the Buyer’s express instructions as to transit and packaging over sea or air transport to be carried out.
- REASONABLE TOLERANCE AND NOTIFICATION OF SPECIFICATION
When the Buyer orders goods from the Seller to a specification provided by the Buyer such specification and any other particulars and information required by the Seller to manufacture the goods shall be provided by the Buyer in good time to enable the Seller to effect dispatch on the date stated in the contract. In the event of the Buyer failing to comply with the clause the Seller may as its option cancel the contact in whole or in part by giving written notice thereof to the Buyer. The Seller shall be entitled to a reasonable manufacturing tolerance in respect of any goods manufactured to a specification provided by the Buyer.
7.1 If any orders for goods is to be delivered by several instalments to the Buyer each such instalment shall be treated as a separate and identifiable contact between the Seller and the Buyer and the rights of either party thereunder shall be construed accordingly, save only that the Seller may suspend delivery thereof whilst payment is overdue in respect of any previous instalments. If the Seller shall fail to make delivery or shall make defective delivery of any instalments such failure or defective delivery shall not affect the obligations of the parties under the contract of which these conditions form part in respect of the other instalments.
7.2 The Seller will use its best endeavours to dispatch within the time or times stated in the contact but shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the goods (or any of them) promptly or at all howsoever the delay in delivery may have been caused. All delivery dates are given in good faith and shall be treated as estimates only and time of delivery shall not be of the essence unless specifically agreed in writing.
7.3 Where the rate of delivery is not specifically stated the goods shall be delivered and accepted at a reasonable rate and spread evenly over the delivery period stated in the contract completed, subject to any other provision herein contained and subject to agreement to the contrary between the parties, within twelve months from the date of the contract.
7.4 The Seller shall not be liable for any delay in delivery due to any act of God, war, strike, lock-our or industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party and may on giving notice to the Buyer suspend delivery for a period equal to such delay and the contract shall be extended by the length of such period.
7.5 Unless specifically agreed between the parties in writing this contract shall not cover a longer time than twelve months from the date of the contarct and all deliveries must be made and taken within the time stipulated or three months whichever shall be earlier.
All claims in respect of any goods shall be subject to the following limitations:
8.1 Sales by description
- The goods shall be manufactured and supplied in accordance with the description contained in the Seller’s specification and manufactured in accordance with all applicable British standards which relate specifically to the goods
- The Seller may from time to time make changes in the specification of the goods which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for the purpose of the goods.
8.2 Sales by sample
- The bulk of the goods will correspond with the sample in quality.
- The Buyer shall be deemed to have had a reasonable opportunity of comparing the bulk of any consignment of goods with the sample after seven days from delivery have expired.
- Upon the Buyer having been deemed to have had a reasonable opportunity of comparing the bulk of any consignment with the sample the Buyer will also be deemed to have notice of any defect rendering the goods not in accordance with the contract and to have accepted all the goods so delivered.
8.3 Allowable discrepancies in quantity
- The Buyer shall take delivery of the goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity ordered provided that such discrepancy in quantity shall not exceed 1,000 metres or 10% (whichever shall be greater) and the amount payable for the said order shall be adjusted pro rate to the discrepancy.
8.4 Time limits for claims
- In respect of faults or errors readily discoverable on reasonable examination of the work in its delivered state all claims shall be made as soon reasonably capable of discovery but in any event within three weeks of delivery outside which time no claim shall be made. Such claims shall be made in writing and the Buyer shall afford to the Seller the opportunity of examining the work before it has been further handled, processed or otherwise dealt with.
- In respect of faults not discoverable until the goods have been taken into use by the Buyer all claims shall be made in writing as soon as the fault is reasonably discoverable but in any event within three months of delivery of the goods after which time no claims can be made against the Seller.
- In respect of faults not discoverable until goods have been taken into use by a purchasing member of the public all claims shall be made as soon as a fault is reasonably discoverable by the Buyer but in any event not later than three months after delivery by the Seller to the Buyer after which time a claim shall be made against the Seller in writing.
- The Buyer shall notify the Seller or any non delivery of a whole consignment within fourteen days of the date of dispatch (as stated on the invoice) or of short delivery with fourteen days of delivery. In the absence of such notification the Seller shall have no liability for non-delivery or short delivery. Notwithstanding the receipt by the Seller of any such notice a clear signature on a carrier’s delivery advice sheet shall be deemed to signify receipt of the quantity of goods indicated on the advice sheet.
- If the goods are not in accordance with the contract for any reason the Buyer’s sole remedy shall be limited to the Seller making good any shortage by replacing such goods or if the Seller shall so elect, by crediting the Buyer with proportionate part of the price against future dealings.
8.5 Exclusion of indirect loss
- The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of breach by the Seller of this contract.
- The Seller shall have no responsibility whatsoever for any damage, liability, cost, claim or expense suffered by the Buyer or any third party through following any recommendations made by the Seller made in good faith and in the belief that they are correct.
8.7 Sub-standard goods
Any goods sold as sub-standard shall be accepted by the Buyer in their actual state and condition and no condition or warranty whether express or implied whether statutory or otherwise will apply thereto.
8.8 Third party claims
- In the vent that the Buyer shall have disposed whether directly or indirectly of any goods supplied by the Seller to any third party and it shall be alleged that the said goods are in any way defective then the Seller shall have the right to negotiate with such third party and, providing any settlement concluded with the said third party shall include a term that neither the Buyer nor any person deriving title under him shall be under liability to the said third party, such settlement shall be binding upon the Buyer who shall have no further remedy against the Seller in respect of the said goods.
8.9 Notification of proceedings
- In the event of any proceedings being instituted or threatened against the Buyer in respect of goods supplied by the Seller than unless the Buyer informs the Seller in writing forthwith of such threat or institution as aforesaid the Seller shall be under no liability to the Buyer in respect of any damages, costs or expenses sustained by the Buyer in any way arising out of such proceedings. The Seller shall be entitled to assume the conduct proceedings on behalf of the Buyer but at its own cost and in the event of the Seller so requiring the Buyer be deemed by these conditions to have appointed the seller its attorney for such purpose.
8.10 General limitation
- In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the price of the goods.
8.11 Residual exclusion
- All warranties and conditions whether implied by statute or otherwise are excluded from this contract provided that nothing in this contract shall restrict or exclude liability for death or personal injury caused by the negligence of the Seller or affect the statutory rights of a Buyer dealing as consumer.
- EXCLUSION AND LIMITATION OF LIABILITY
If the Buyer objects to the exclusion or limitation of the Seller of his liability arising hereunder he may request the Seller in writing before a contract is made to amend or retract such exclusion or limitation and the Seller will thereupon attempt to obtain adequate insurance cover to allow such amendment or retraction and then resubmit a quotation at a revised price in the light of the cost of such insurance and the additional risk of liability taken by the Seller. If no objection is made as aforesaid it will be conclusively presumed that the Buyer has accepted the exclusion or limitation of liability of the Seller in the knowledge that the price for the work to be done will be increased If the Seller’s potential liability were to be increased and in such cases the Buyer may well decide to obtain his own insurance cover to replace or supplement any claim which he might otherwise have had against the Seller.
If the buyer fails to make payment for the goods in accordance with the contract of sale or commits any other breach of the contract of sale or if any distress or any execution shall be levied upon any of the Buyer’s goods or if the Buyer offers to make arrangement with its creditors of if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if (being a limited company) any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented of if a receiver, administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or any petition for the appointment of an administrator is presented against the Buyer or if the Buyer shall suffer any analogous proceedings under foreign law all sums outstanding in respect of the goods shall become payable immediately. The Seller may in its absolute discretion and without prejudice to any other rights which it may have:-
- Suspend all future deliveries of goods to the Buyer and/or terminate the contract without liability upon its part and/or
- Exercise any of its rights pursuant to clause 4
- PRICE VARIATION
The Seller shall be entitled in its absolute discretion to adjust the purchase price of the goods whether before or after the making of the contract to which these conditions relate in the vents of any variation in the cost to the Seller of supplying the goods or any part thereof caused by any reason whatsoever beyond the control of the Seller including ( without prejudice the generality of the foregoing) changes in exchange rates, the actions of any Government or authority, increased cost of labour, production or materials, strikes, industrial disputes, machinery and similar breakdowns and delay by the Seller’s suppliers.
No indulgence or forbearance extended to the Buyer shall limit or prejudice any rights or claim available to the Seller.
- TRADE MARK PATENTS AND COPYRIGHT
13.1 No right or license is granted under the contract of sale to the Buyer to use any patent, trade mark, copyright, registered design or other intellectual property right except the right to use or resell the goods.
13.2 The specifications and design of the goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller. Where any design or specifications have been supplied by the Buyer for manufacture by or to the order of the Seller then by he Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the goods shall not infringe the rights of any third party and he Buyer will indemnify the Seller any claim, demand, damages, and expenses incurred by the Seller arising out of any infringement or alleged infringement of any third parties’ intellectual property rights in respect of goods produced to such specification or design as aforesaid. In the event of the Buyer failing to take delivery of the whole of an order produced to such specification as foresaid, then the Seller shall be entitled to sell such goods on its own behalf and the Buyer shall nevertheless indemnify the Seller as aforesaid.
14.1 The Buyer shall not without the Seller’s prior written consent assign or transfer or purport to assign or transfer the contract to which these conditions relate or the benefit thereof to any person whatsoever.
14.2 The Seller may license or sub contract all or any part of its rights and obligations under this contract without the Buyer’s consent.
- TERMS OF PAYMENT AND INTEREST
15.1 Payment shall be made by the Buyer on the terms specified or if no terms have been specified forthwith and time of payment shall be deemed to be of the essence. If the terms specify that payment shall be by instalments and if the Buyer fails to pay one instalment on the due date, the balance of the instalments shall be forthwith and the Seller shall be entitled to treat such failure as repudiation of the whole contract by the Buyer and to recover damages for such breach.
15.2 The Seller may at its sole discretion require the payment of interest on all monies that are overdue at an annual rate equal to 3% above the base rate for the time being of Lloyds Bank Plc from the date that such payments became due up to the date of actual payment by receipt of cleared funds and shall accrue at such a rate after as well as before any judgement.
15.3 Proforma customers are entitled to deduct any early payment discount from the sale price quoted.
In the event of the Buyer failing to accept delivery of or to collect any goods in accordance with its contractual obligations the Seller reserves the right to make a storage charge at a rate to be notified by the Seller to the Buyer to cover the period during which the goods are stored by/or on behalf of the Seller as a result of the Buyer’s failure as aforesaid.
- PROPER LAW
This contract is subject to the law of England and Wales and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of the court of England and Wales.