All quotations, offers, Acceptances and contracts of sale made by or on behalf of the seller are subject to the following terms and conditions which shall apply so far as the same are not varied by any special terms or conditions agreed in writing between the parties and in the case of the seller signed by a director of the seller. Subject as aforesaid, the terms and conditions herein set out shall
apply to the exclusion of all other terms and conditions and in particular it is expressly agreed by the person, firm or company issuing the order (“the buyer”) that the contractual conditions (if any) of the buyer are excluded in their entirety.
- Specifications, descriptions, etc.
All specifications and particulars contained or referred to in any quotation are approximate only, and the descriptions and illustrations contained in the seller’s catalogues, price lists and other advertising matter are intended merely to present a general idea of the goods described therein, and none of these shall form part of the contract. In addition, the buyer shall be deemed to rely entirely upon his own judgment as to the nature of the seller’s goods and their suitability for his purposes, and not upon any representation made by the seller, its servants or agents whether orally or in writing.
All prices quoted in any quotation, catalogue, or price list of the seller are intended to be indicative and are therefore only approximate. Prices are subject to (a) Correction of any errors and omissions, and (b)Alteration without notice. The contract price shall be the seller’s price ruling at the time of delivery. Any discount to be given by the seller to the buyer shall be as individually agreed and conditional upon payment within the contractual period ((7) below).
- Liability for delay.
The contract is subject to the goods being available at the time when delivery is due to be made. The seller will use its best endeavours to deliver all goods in the quantities and within the times specified inthe contract but the seller shall not (subject to condition 5) be liable for any expense, damage or loss however caused or arising, including consequential loss suffered by the buyer, by reason of any shortfall in quantities or delay in dispatch or delivery.
- Shortages, loss and damage.
(A)Notice of any claim relating to shortage of or damage to the goods shall be made to the seller within
72 hours of receipt of the goods. In the event of loss or non-delivery the buyer shall notify the seller in writing within 7 days of receiving the advice note.
(B)The seller’s liability in respect of any shortage, loss or damage to the goods shall be limited to the proportion of the price attributable to the goods undelivered lost or damaged plus the necessary cost(if any) to the buyer in removing the same.
- Storage and Transportation.
Subject to express and agreed instructions in writing given by the buyer, the seller reserves to itself absolute discretion as to the means, route and procedure to be followed in the handling, storage, and transportation of goods.
(A)Title to the products shall not pass to the buyer until payment for the goods has been made in full.
(B)Payment will be required at time of order unless a credit account has been established by seller in which case and unless otherwise agreed in writing payment shall be made within 30 days of invoice.
If payment is made in accordance with Clause (A) of this condition, the buyer shall be entitled to the discount specified in the invoice.
(C)In default of payment in accordance with Clause (A) of this condition, (and without prejudice to any other available remedy);
(i)any discount arrangement between the parties shall not apply in respect of accounts unpaid nor while payment is overdue to further supplies;
(ii)the seller may withhold further deliveries in respect of the contract or series of contracts to which the default relates and in respect of any other contract for delivery of goods to the buyer;
(iii)payment in respect of all goods delivered by the seller to the buyer shall become due and payable immediately:
(D)If the seller shall allow provisional credit in respect of any part of the goods it shall be without prejudice to its right to refuse to give up possession of any other part of the goods except against payment.
(E)If payment of the price or any part of it is not made by the due date, the Seller shall be entitled to charge interest on the outstanding amount (both before and after any judgment) at the rate of8% per annum above the Base Rate from time to time of the National Westminster Bank plc accruing daily and compounded with monthly rests on the last day of each calendar month.
- Force Majeure.
(A)The seller shall not be liable for any loss, damage or expense suffered or incurred and the buyer shall not be entitled to terminate the contract on account of war, act of God, civil commotion, riots, strikes, lock-out, fog or any other bad weather condition, delays in transport, non-availability of materials, breakdown of plant or machinery, or any other cause beyond the seller’s control.
(B)Notwithstanding Clause (A) of this condition if delivery of any item comprised in the goods has not been made within 2 months of the estimated delivery date, the buyer shall be entitled to cancel its order in respect of that item but the seller shall in no circumstances be liable to compensate the buyer, in damages or otherwise for late delivery or non-delivery of the goods, or any of them for whatever reason or for any loss consequential or otherwise arising there from.
- Passing of risk and property.
(A)Risk of loss of or damage to the goods shall pass to the buyer at the time of delivery unless otherwise agreed in writing, delivery shall be deemed to be completed at seller’s premises or specified delivery address on the purchase order. The property in the goods shall not pass to the buyer until the full value of the price has been received by the seller, and until payment, the buyer shall hold the goods as bailee for the seller. The seller may sue for the whole of the price at any time after it has become payable.
(B)Payments shall be applied to invoices in the order in which they were issued unless otherwise specified by the buyer and to goods in the order in which they are listed in invoices.
(C)In the event of any sale or other disposition of the goods by the buyer, the buyer shall, subject to sub-clause (D) below, hold on trust for the seller the whole of the proceeds of sale.
(D)The trust declared in sub-clause (C) above shall be void if and to the extent that a trust in like terms arises by operation of law in favour of the seller.
(E)The buyer shall not:-
(i)pledge the goods or documents of title thereto, or allow any lien to arise thereon;
(ii)process the goods other than in the ordinary course of the buyer’s business;
(iii)deal with or dispose of the goods or any interest therein other than by a sale to an independent purchaser buying for the full value in the ordinary course of the buyer’s business:
(iv)hold itself out as the seller’s agent in respect of the goods.
(F)If the buyer shall default in the punctual payment of any sum owing to the seller, then the seller shall be entitled to the immediate return of all goods sold by the seller to the buyer in which the property has not passed to the buyer, and the buyer hereby authorizes the seller to recover the goods or documents and to enter any premises of the buyer for that purpose.Demand for or recovery of the goods by the seller shall not of itself discharge either the buyer’s liability to pay the whole of the price and take delivery of the goods or the seller’s right to sue for the whole of the price or (as the case may be) to sue for damages for breach of contract on the part of the buyer.
Seller will indemnify buyer against any claim for infringement of letters patent registered design, trademark or copyright (published at the date of the contract) by the use or sale of any article or materials supplied by seller to buyer and against all costs and damages which may be incurred in any action for such infringement or for which buyer may become liable in any such action. Provided always that this indemnity shall not apply to any infringement which is due to seller having followed a design or instruction furnished or given by buyer or to the use of such article or material in a manner or for a purpose or in a foreign country not specified by or disclosed to seller. And provided also that this indemnity if conditional on buyer giving the earliest possible notice in writing of any claim being made or action threatened or brought against buyer and on permitting seller at its own expense to conduct any litigation that may ensue and all negotiations for a settlement of the claim.Buyer warrants that any design or instruction furnished or given by it shall not be such as will cause seller to infringe any letters patent, registered design, trademark or copyright in the execution of the buyers order.
- Liability for accidents and damage.
If seller, its agents or sub-contractors are on site for the purposes of the contract then, not withstanding the provisions of condition 13 seller will indemnify buyer against direct damage or injury to buyer’s property or person or that of others occurring while seller is working on site to the extent caused by the negligence of itself, its sub-contractors or agents, but not otherwise, by making good such damage to property or compensating personal injury. Provided that:
(A)Seller’s total liability for damage to buyer’s property shall not exceed £100,000 or the contract price, whichever sum is the greater, and
(B)Seller shall not be liable for any loss of profit or of contracts or, save as aforesaid, for any loss, damage or injury of any kind whatsoever.
Save as provided in conditions 10 and 13 seller shall not be liable for any damage or injury occurring after completion of work on site.
- Legal construction.
Unless otherwise agreed in writing, the contract shall in all respects be construed and operate as an English contract and in conformity with English Law.
(A)The seller will replace, or at its option repair, any goods supplied by it which may be shown to its reasonable satisfaction within the warranty period to be defective by reason of faulty materials, workmanship, misapplication or installation by the seller.
(B)The warranty period is 18 months from the sale of goods or 12 months from their installation, whichever is the sooner. To claim under the warranty the buyer must notify the Seller in writing of the suspected defect in the goods as soon as reasonably possible after becoming aware of it, and in any event within the warranty period, giving full particulars of the suspected defect, the invoice and order numbers and enclosing a copy of the delivery note. The goods must be returned to the seller carriage paid. The seller will refund the carriage if the warranty claim is accepted.
(C)The seller’s liability in respect of defective goods, workmanship or installation shall be limited to the above warranty or, at the seller’s option, to a refund of the purchase price for the goods, except as may be expressly stated elsewhere in these conditions or for any liability which may not legally be excluded or so limited. In no event shall the seller, its employees or agents be otherwise liable for any injury, loss or damage (including, without limitation, consequential loss or damage), loss of profits, or costs or expenses of any kind whatsoever, however caused by or arising in connection with any goods supplied and/or installed by the seller.
Except as expressly stated in condition 13, no condition, warranty or representation as to description, condition, quality or fitness for purpose, whether collateral to the contract or otherwise is given or deemed to be or have been given or implied and any such statutory or other condition, warranty or representation, whether expressed or implied and whether collateral to contract or otherwise is hereby excluded.
All disputes which may arise under or out of or in connection with or in relation to these conditions of sale or any contract to which they apply shall be referred to a single arbitrator, in accordance with and subject to the provisions of the Arbitration Acts 1950-1979 or any statutory modification or re- enactment thereof for the time being in force.