CONDITIONS OF SALE
- DEFINITIONS. In these Condition
a) "the goods" or "goods" shall mean any substance article product to be sold by the Company to the Purchaser pursuant to an order whether alone or with other Substances articles or products.
b) "the Contract Terms" shall mean the terms relating to the goods agreed between the Company and the Purchaser included in: (i) any estimate or quotation provided by the Company or (ii) any tender made by the Company and accepted by the Purchaser; or (iii) any acknowledgement of order given by the Company, (whether or not subsequent to an estimate provided by the Company)
PROVIDED THAT in the event of conflict between the above (iii) shall prevail over (ii) and (i) and (ii) shall prevail over (i)
c) All orders shall be executed on the understanding that placing of an order constitutes acceptance of these terms to the exclusion of all conditions of the Purchaser's order except in so far as the same are expressly accepted by the Company in writing.
- a) These conditions shall apply to any agreement made between the Company and the Purchaser relating to the goods and the Purchaser shall be deemed to have notice of them if and as soon as it places an order with or accept a tender from the Company relating to the Goods. The Contract Terms constitute the entire Contract ("the Contract") between the Company and the Purchaser so far as concerns the supply of the goods.
b) No order or variation shall be binding on the Company unless and until accepted in writing by the Company and no agent or other representative of the Company has any authority from the Company to make or vary any agreement on behalf of the Company unless subsequently notified by the Company in writing.
- Every order or variation accepted by the Company includes only such goods and works as are expressly specified or incorporated in the acceptance in writing of the order.
- No quotation estimate or tender issued by the Company shall constitute an offer to sell the goods. Any order placed by the Purchaser in response to such a quotation or tender shall constitute an offer made to the Company in accordance with the Contract Terms and shall only be binding on the Company if it is accepted by the Company in writing.
- a) Prices quoted by the Company are subject to variation at the time of delivery to meet any changes howsoever occasioned and notwithstanding anything contained in the Contract Terms the company may by written notice given generally or particularly to the Purchaser at any time up to the actual date of completion or performance increase the Contract price and the Company reserves the right to invoice the Purchaser for the goods at the price ruling at the date of despatch and the Purchaser shall pay such invoiced price.
b) If by reason of any law governmental decree order or regulation the Company is prevented from making an increase in the price in accordance with a) above it may cancel the Contract on written notice.
- Notwithstanding that credit has been given for the payment of the price of goods the Company shall be entitled to retain possession thereof until payment.
- a) The Purchaser shall pay for any loss to or extra cost incurred by the Company through the Purchaser's instructions or lack of instructions or the Purchaser's delay or failure in taking delivery or through any request act or default on the part of the Purchaser or the Purchaser's employees.
b) If the Purchaser shall fail to take delivery of goods available within 48 hours of written notice from the Company to do so the Company shall be entitled to rescind the Contract for the supply of such goods or (if part of a larger order) the remainder of such order and to retain any moneys paid therefore as liquidated damages for breach of the Contract.
- a) The Company shall deliver the goods at the time or times specified in the order if none be named a its works and save as hereinafter provided such time or times given for delivery shall be reckoned to commence three days from acceptance of the order by the Company in writing or from receipt of all necessary instructions and information to enable the Company to fulfill the order or variation as these may be whichever time shall be the later and if a fixed date or dates is or are specified for delivery such date of dates shall be postponed by the period if any which elapses between the expiration of the said three days and the receipt of such instructions and information.
b) Where delivery is to be made otherwise than at the Company's works it shall convey the goods to the point nearest to the place of delivery to which there is suitable access and the Purchaser shall be responsible for unloading the goods. Where delivery is to be made at the Company's works it shall if required load the goods on to a vehicle specified by the Purchaser.
c) Where goods are to be delivered by the Company to the Purchaser other than at the Company's works the Company shall have the right to effect carriage by whatever reasons and by whatever route it shall select but normally will arrange delivery either by road transport or by second class post at its option.
d) Delivery dates are approximate only and no liability can be accepted for any loss injury damage or expenses consequent upon any delay in delivery from whatever cause nor shall delay entitle the Purchaser to cancel any order or to refuse to accept delivery.
- Whilst the Company will use its best endeavours to deliver in accordance with the last preceding clause it shall nevertheless be under no liability for late delivery save and except to the extent if any of such fixed amount or amounts which it may have expressly agreed to pay in respect thereof.
- a) In any event the Company shall be under no liability for any delay in making or failure to make delivery if such delay or failure be due to any cause whatsoever outside the Company's reasonable control and no delay shall entitle the Purchaser to cancel an order or variation unless:
(i) Such delay is due to a cause not outside the Company's control and
(ii) Is unreasonably prolonged in all the circumstances.
b) If by reason of any circumstances whatsoever beyond the Company's control including (but without prejudice to the generality of the fore-going) war riots civil commotion strikes lockouts fire explosions requisitions and Acts of God it shall be unable to deliver any Goods it may cancel contract in respect of the goods affected and any contractual obligations in respect of those goods shall be wholly discharged.
c) If the Purchaser cancels the Contract and the Company elects to treat the Contract as rescinded then without prejudice to any other right or remedy that the Company may have the Purchaser shall forthwith pay to the Company on demand all the costs and expenses it has incurred in connection with the Contract prior to the date of such cancellation.
- a) The goods properly packed and secured in such a manner as to reach their destination in good condition under normal conditions of transport shall be delivered by the Company at or despatched for delivery to the place or places and in the manner specified in the order or as subsequently agreed whether by the Purchaser's instructions or otherwise.
b) The Company shall be responsible for the proper packing and securing of the goods but shall not be liable for damage caused thereto by third parties (including carriers).
- Except as otherwise expressly agreed goods sold shall be at the sole risk of the Purchaser as soon as they leave the Company's premises.
- a) If within the period after delivery named in the order ("the Guarantee Period") the Purchaser gives notice in writing to the Company of any defect in the goods which shall arise under proper use from faulty materials or workmanship then the Company shall with all possible speed replace or repair the goods so as to remedy the defect PROVIDED THAT
(i) the Purchaser shall have installed and at all times used such goods properly and in accordance with operating instructions given by the Company; and
(ii) all such defects are reported on discovery by the Purchaser and within 10 days from being supplied to the Purchaser.
b) The maximum damages recoverable in the event of breach of the Contract by the Company shall be limited to the Contract price of the goods the Company shall in no circumstances be liable to the Purchaser for any injury other than death or personal injury resulting from its negligence or any indirect or consequential damage or loss of any kind whatsoever arising out of any breach of the Contract.
- Failure to advise the Company of non-delivery of goods within 10 days from date for delivery specified in the order will relieve the Company of all responsibility and liability for loss.
- Delivery may be wholly or partially suspended and the time of such suspension added to the original contract date or dates for delivery in the event of a stoppage delay or interruption of work in the establishment of either the Company or the Purchaser during the delivery period as result of strikes lockouts trade disputes breakdown accident or any cause whatsoever beyond the control of the Company or the Purchaser respectively.
- a) The Purchaser shall inspect the goods immediately on the arrival thereof and shall within 10 days from such inspection give notice in writing to the Company of any matter or thing by reason whereof he alleges that the goods are not in accordance with the contract if the Purchaser shall fail to give such notice the goods shall be deemed to be in all respects in accordance with the contract and the Purchaser shall be bound to accept and pay for the same accordingly.
b) It shall be the Purchaser's responsibility to return alleged defective goods to the Company at the Purchaser's expense.
- Losses or damage to goods must be notified both to carriers and the Company immediately and damaged parts and packages retained for inspection. No liability whatsoever will be accepted upon failure to do so.
- The Company will repair or at its option replace free of charge any of the goods damaged or lost in transit to the place of delivery. Delivery of such lost or damaged goods shall not be deemed to have taken place until the repaired or replaced goods have been delivered Provided always that in the case of both damage and so far as is possible loss the Company is given written notification of such loss or damage within such time as will enable it to comply with the carriers conditions of carriage as affecting loss or damage in transit or where delivery is made by the Company's own transport within 10 days of the receipt of the goods by the Purchaser if the Purchaser fails to give the Company notice of damage or loss within such times as are set out above it shall not be liable to repair or replace the lost or damaged goods and such goods shall be deemed to have been delivered for the purpose of the Contract.
- a) Payment for goods shall if the Company so requires be made in full prior to delivery and the Company shall be entitled to withhold delivery until such payment is made and any cheque or other negotiable instrument given in settlement cleared.
b) If payment in advance is not so required in accordance with sub-clause (a) hereof the Contract price shall be payable in accordance with the terms of payment set out to the Contract Terms. Interest will be payable on any sums outstanding after the due date at such rates as the Company may in its absolute discretion think fit but at least at a rate of 2% per month.
c) The Company shall have the right to nominate a date upon which the whole balance of all sums invoiced by or owing to the Company together with all interest or other charges relative thereto shall become payable and service of any notice in accordance with the clause shall make time for payment of the essence of the Contract and any other Unless and until all such sums owing are paid to the Company it shall be at liberty to suspend the performance of all or any of its obligations hereunder.
- Save as hereinafter provided the Purchase price specified in the order shall be paid on the date and manner appearing in the order and such time for payment shall be of the essence of this contract.
- a) The risk in the goods shall pass to the Purchaser under Clause 12 hereof but ownership thereof shall remain in the Company until payment in full has been made (each order being considered as a whole) or the Purchaser resells the goods as provided herein.
b) Before payment in full is made the Purchaser shall have the power to resell the goods (as principal towards sub-purchaser but as agent as between Purchaser and Company) and the Company shall be beneficially entitled to and the Purchaser shall be under fiduciary duty to account to the Company for the proceeds of resale and any claim thereto.
c) If the Purchaser not having made payment in full for the goods mixes them with other goods or uses them in the manufacture of other products the ownership of the other goods or products shall thereupon vest in the Company as security for such payment and accordingly sub-clause (b) shall as far as appropriate apply to such other goods or products.
d) Until such payment in full the Purchaser shall clearly identify the goods or the said other goods or products as being the property of the Company.
e) The Company shall be entitled forthwith to recover and resell any or all of such goods or products to which the Company has title here-under and to enter upon the premises of the Purchaser with such transport as may be necessary for that purpose if the Purchaser commits any default hereunder which expression shall without prejudice to the generality thereof include failure to pay the Company on the due date the appointment of a receiver of the Purchaser's business or the presentation of a petition to wind up the Purchaser Nothing herein shall entitle the Purchaser to return the goods or to refuse or delay payment for them.
- a) All specifications performance figures drawings and particulars of weights and dimensions made available by the Company and not included in the Contract Terms are approximate only and the description and illustrations contained in its catalogues price lists or publicity material are intended only to present a general idea of their subject matter and none of the items referred to in this Condition shall form part of the Contract.
b) The Company warrants that the goods supplied are in accordance with the Contract Terms but will accept no liability for failure to attain any performance figures unless such are specifically guaranteed in the Contract Terms.
c) Any other express or implied term condition or warranty whether arising under statute or otherwise as to the fitness suitability quality condition correspondence with description or sample or merchantability of the goods is hereby expressly excluded from the Contract Terms.
d) In placing an order with the Company for the goods the Purchaser acknowledges that it has not relied on any representation made to it by or on behalf of the Company in relation to the goods save as expressly incorporated in the Contract Terms.
e) The method of application of sprays using the goods shall be the sole responsibility of the Purchaser and the Company shall not be liable to any suggested or recommended method or methods whether by means of its literature or any member employee representative or agent of the Company.
f) The Company shall not be liable in any way whatsoever for the results of any spraying carried out by or on behalf of the Purchaser using the goods.
- Unless otherwise stated in the Contract Terms the Contract price is ex-works and is deemed to exclude V.A.T. and the Purchaser shall pay any such tax, which is properly payable as an addition to payments otherwise due under the Contract.
- The Contract and the Contract Terms shall in all respects be subject to and construed in accordance with English Law and the English courts shall have sole jurisdiction in all matters arising therefrom in the case of Export Contracts.
a) Unless otherwise stated in the Contract Terms the full price shall be payable against presentation of shipping documents.
b) The Purchaser shall obtain all import licences and other necessary authorisations required for the transit of the Goods to and into the country of destination and the Purchaser shall pay all customs and import duties on the goods wherever levied outside the United Kingdom.
c) Condition 18 and the words "other than death or personal injury resulting from our negligence "in Condition 13(b) shall not apply.
- Where the Purchaser is a consumer and any transaction between it and the Company is or will be a consumer transaction any statement or term contained in the Contract Terms which would be void by virtue of Section 6 or 20 of the Unfair Contract Terms Act 1977 (or by any statutory amendment or re-enactment) shall be excluded from the Contract Terms and nothing in these Conditions shall affect or be construed as affecting the statutory rights of a consumer.
- If tests other than those (if any) specified in the Company's tender estimate or quotation or tests in the Purchaser's presence or the presence of the Purchaser's representative are required these will be charged for in the event of any delay on the Purchaser's part or on the part of its representative in attending such tests after seven days notice that the Company are able and willing to conduct then the tests will proceed in the absence of the Purchaser or its representative (as the case may be) and shall be deemed to have been made in the presence of the Purchaser or its representative ( as the case may be).
- The Company warrants that at the time of manufacture the goods did not infringe any trademark or letters patent in the country of manufacture PROVIDED ALWAYS that this warranty shall not extend to goods manufactured according to the Purchaser's designs or drawings and the Purchaser will indemnify the Company against any actions claims or demands whatsoever arising by virtue of such manufacture The Company does not warrant that the importation or use of the goods in any other country is free of infringement of any patents or trademarks or copyright of such country and the Purchaser will indemnify the Company against any actions claims or demands howsoever arising in respect of the importation or use of the goods in any such country.
- The Company reserves the right to pay for goods or to receive payment for goods by contra entry in its accounts in the event of a contra settlement it will be deemed that the Title of the goods will have passed as if cheques had changed hands.