1. Terms of quotation
All quotations are given and orders accepted by the Seller on the basis of the conditions of trading set out below to the exclusion of any conditions of trading which the Buyer may purport to impose.
2. Variation of terms
No variation of these conditions shall be valid unless signed by the Seller.
3. Separate contracts
Each order placed by the Buyer shall, on acceptance by the Seller, be treated as a separate contract. If there shall at any time be more than one contract in course of performance between the Seller and the Buyer, any question, dispute or difficulty which may arise in respect of one of such contracts or the terms on which it may be settled shall not affect in any way the performance of the other contracts, nor shall the Buyer be entitled to exercise in relation to any contract any right of set-off or counter claim arising under another contract.
(a) Orders may not be cancelled in whole or in part without the consent of the Seller.
(b) The Company accepts orders on the basis that goods will be despatched to the Buyer within a maximum of 12 months from the date of order placement. In the event that the Buyer does not require the goods to be delivered within this time, the Company reserves the right to cancel such orders or the undelivered balances of such orders.
5. Terms of payment
Unless otherwise agreed in writing, all prices are exclusive of VAT and are payable in cash to be received by the Seller no later than the last day of the month following the month of the invoice date. In case of failure to pay when stipulated, all sums outstanding shall become payable immediately.
6. Overdue Accounts
If any payment is in arrears the Seller shall be entitled (without prejudice to any other rights it may have) to suspend further deliveries until payment is received, whether or not such deliveries are due under the same contract or other contracts. Interest at 15% per annum shall be chargeable on overdue accounts at Seller’s discretion.
7. Risk and property
(a) Risk in the goods shall pass to the Buyer on delivery but property shall be retained by the Seller until the Buyer has paid for the goods in full and all other amounts due from the Buyer to the Seller at the date of delivery on any account whatsoever or until the goods have ceased to be identifiable by virtue of having been mixed in the course of manufacture with other goods.
(b) If any payments are overdue or the Buyer commits any act of bankruptcy or, if a limited company, satisfies any statutory ground for winding up by the court or a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the Seller (other than for the purpose of amalgamation or reconstruction), then, without prejudice to any other remedies, the Seller may terminate any subsisting contracts with the Buyer, and by its servants or agents enter the Buyer’s premises to recover all goods in respect of which property has not passed.
(c) Until property has passed the Buyer shall hold the goods as the Seller’s bailee in a fiduciary capacity. The goods may be re-sold by the Buyer in the ordinary course of business as the Seller’s agent. The fiduciary relationship shall continue in respect of the proceeds of sale which must first be used to discharge the outstanding indebtedness to the Seller in priority to any other claim. The Buyer shall, at the Seller’s request, where property in the goods has not passed to the Buyer prior to the sale, give notice to any third party to whom such a sale has been made, that the Seller is the principal in respect of such sale and that payment should be made directly to the Seller. The Seller shall return to the Buyer any monies recovered in excess of sums owing and its reasonable costs and expenses of pursuing the claim.
(d) Without prejudice to paragraphs (a), (b) and (c) above, in any case where the Buyer fails to pay for the goods or any part of the goods, the Seller may, notwithstanding that the property in the goods has not passed to the Buyer, maintain an action for the price of the goods or any part against the Buyer.
Prices quoted are delivered prices, U.K. mainland, unless otherwise agreed.
(a) Delivery dates quoted by the Seller are given in good faith but the Buyer shall have no right to damages or to cancel an order for failure for any cause to deliver on the specified date or dates.
(b) If the contract calls for delivery in instalments each instalment shall be deemed to constitute a separate contract. Any defect in any instalment or failure to deliver any instalment shall not give the Buyer the right to cancel future deliveries.
(c) If the Buyer agrees to collect goods from the Company, the Company shall be under no liability for the positioning, securing, or insurance of the load or for the operation of the transport of the Buyer or his Contractor. The loading of the said transport in compliance with Road Traffic Legislation shall be the sole responsibility of the Buyer or his Contractor.
10. Limitation of liability
(a) The Seller warrants that the goods shall be of merchantable quality but gives no guarantee of their suitability for any specific purpose even if that purpose be known to the Seller. The Buyer shall test each delivery for the specific purpose for which it is to be used before using the bulk.
The Seller’s liability is limited to replacement of any goods which do not conform to this warranty. This warranty is given in place ofand shall be deemed to exclude all other warranties and conditions whether express or implied, and whether arising by common law, statute or otherwise. In particular, but without limitation to the foregoing the Seller shall not be liable for the failure of the goods to be fit for any particular purpose nor shall the Seller be liable for any loss or damage attributable to the goods whether direct or consequential and whether arising in contract or tort.
(b) Notwithstanding anything to the contrary contained in these terms and conditions, any liability on the part of the Seller being a liability of the kind specified in section 2 (1) or 6 (1) of The Unfair Contract Terms Act 1977 is not excluded or restricted to any extent, except where this contract falls within section 26 of that Act.
11. Notification of claims
(a) The Seller shall be entitled to reject any claim in respect of the goods unless such claim is notified in writing to the Seller within 14 days of delivery, or, if any alleged defect is not immediately apparent, within such longer period as the Seller may reasonably allow in the circumstances.
(b) The Seller shall be entitled to reject any claim for non-delivery of the goods in whole or in part unless notice in writing is given by the Buyer within such time from the date of despatch as would enable a claim to be made on the Carrier.
12. Safety instructions
The Buyer undertakes to ensure compliance by his servants or agents with any safety precautions or instructions for safe handling given by the Seller.
13. Force majeure
Notwithstanding any other provisions hereof, should the manufacture, processing, delivery or despatch of the whole or any part of the goods be delayed, prevented, hindered or rendered uneconomic by any cause or causes whatsoever beyond the Seller’s control, the Seller shall be entitled either to cancel the contract or to postpone or suspend any delivery or deliveries under the contract until in the Seller’s judgement such cause shall have ceased to operate. The Seller shall be under no liability in respect of such cancellation, postponement or suspension. Without limiting the generality of the cause or causes referred to above, the same shall include war, fire, accident, breakdown of plant or machinery, strikes and lock outs (whether affecting the Seller’s works or those of their suppliers or their carriers), shortages or late or non-delivery.
The Seller and the Buyer agree that these Conditions of Sale and any orders made pursuant thereto shall be governed by and construed in accordance with English Law and the parties hereto hereby irrevocably submit to the non-exclusive jurisdiction of the English Courts.
Any notice or communication under or in connection with these Conditions of Sale shall be in writing and shall be delivered personally, or by post, facsimile or electronic mail to the address of the recipient given above or to such other address as the recipient may have notified.