Terms and Conditions
These terms and conditions do not apply to contracts in which the Buyer is dealing as a consumer insofar as they would be void under the Unfair Contract Terms Act 1977. THE STATUTORY RIGHTS OF PARTIES DEALIING AS CONSUMERS ARE PRESERVED THROUGHOUT.
1 - Subject to the above statement in relation to contracts in which the Buyer is dealing as a consumer these terms and conditions govern all contracts entered into by the Seller for the supply or sale of goods or services (the goods). Any order given to the Seller, or the acceptance of a tender by the Seller, shall be deemed to constitute an Agreement to be bound by these terms and conditions. No variation of these terms and conditions shall be of any effect unless agreed by the Seller in writing.
2 - Any illegality or invalidity of any of these conditions or any part of any condition shall not affect the legality, validity or enforceability of the remainder of these conditions or the other parts of such condition as the case may be.
3 - Unless previously withdrawn, a quotation is open for acceptance within either the period stated therein or, if none is stated, 30 days from its issue. Any such acceptance by the Buyer shall not create a contract bur shall be deemed to be an order request placed by the Buyer.
4 - No contract shall be created unless the Seller has accepted in writing an order request placed by the Buyer, irrespective of how such order request is expressed and whether it results from a prior quotation or arises otherwise.
Other Printed or Standard Conditions
It is agreed that only these terms and conditions shall apply to contracts between the Seller and the Buyer and any documents emanating from the Buyer which contain printed or standard conditions have been and shall be sent buy the Buyer and received by the Seller on the understanding that they appear on the Buyer’s documents because they are printed thereon but have no legal effect whatever and the Buyer waives any rights which the Buyer otherwise might have to rely on such conditions.
These terms and conditions shall have effect in place of any other terms and conditions which may have previously been notified buy the Seller to the Buyer.
Description of Goods, Drawings, Specifications, Catalogues, Estimates and Advertising matter.
1 - All goods and the works are supplied subject to reasonable availability to the Seller of suitable material and labour. The Seller reserves the right without notice to substitute materials, components and units other than those mentioned in the contract.
2 - All drawings, descriptive matter, weights, dimensions, specifications, brochures, catalogues, price lists and all advertising matter are approximate and by way of identification only and are intended merely to present a general idea of the goods or services described therein and their use shall not in any circumstances render any sale a sale by description, nor shall they form part of any contract. All prices quoted therein are subject to alteration or withdrawal from time to time without notice.
The Seller warrants that if, within tree months of the delivery of goods, the Buyer gives notice that it considers them to be defective, providing a full description of the respects in which they are allegedly defective, then if the Seller is satisfied, after inspection or otherwise, that such goods are in fact defective, they will be repaired at the Seller’s discretion but the Seller shall be under no liability to replace the goods or exchange the goods for new goods. For the purposes of the foregoing the Buyer will, where required to do so by the Seller, at the Buyer’s own expense return such goods properly packed and clearly marked. Further, the Buyer will allow the Seller unrestricted access to the Buyer’s premises for inspection purposes and reimburse the Seller for all its expenses incurred in connection with such visit and inspection. This warranty shall constitute the Buyer’s sole remedy in respect of the supply of defective goods and shall only be applicable if:-
1 - the defect was due solely to defective materials or defective workmanship; and
2 - no alterations or repairs have been made to the goods except with the written consent of the Seller; and
3 - the defect was not caused by incorrect or abnormal use, overloading, unsuitable work, faulty installation or any other default by the Buyer, its servants or agents; and
4 - the defect was not caused by any other matter beyond the Seller’s control occurring after delivery.
The warranty contained in condition 5 extends to neither second-hand and reconditioned goods nor to goods not manufactured by the Seller which carry only the warranty, if any, of their manufacturer, to the benefit of which the Buyer is entitled insofar as the Seller has power to transfer it. If the Buyer, being a consumer, shall by virtue of the Unfair Contract Terms Act 1977 or the Consumer Protection Act 1987 or any other statutory authority shall be entitled to claim against the Seller in respect of goods not manufactured by the Seller then the Buyer shall first exhaust all actions or remedies against the manufacturer, whether appearing in the warranty of the manufacturer or not.
The terms of condition 5 are in lieu of all conditions, warranties and statement in respect of goods whether expressed or implied by statute, trade, custom or otherwise (including but without limitation any such condition, warranty or statement as to the quality or description of goods or their fitness for a particular purpose) and any such condition, warranty or statement is hereby excluded.
Without prejudice to the terms of conditions, the Seller will accept liability for any loss or damage sustained by the Buyer as a direct result of any breach of contract or of any other liability of the Seller (including negligence) in respect of the manufacture and/or supply of goods for, or under, a contract, provided that such liability shall be limited to payment of damages not exceeding the invoiced value of such contract.
Subject to the terms of condition 6.6, the Seller shall not be liable for the following loss or damage howsoever caused (even if foreseeable or in the Seller’s contemplation):
1 - loss of profits, business or revenue whether sustained by the Buyer or any other person; and
2 - special, indirect or consequential loss or damage, whether sustained by the Buyer or any other person; and
3 - any loss arising from any claim made against the Buyer by any other person;
The Buyer shall indemnify the Seller against all claims, actions, costs, expenses (including court costs and legal fees) or other liabilities whatsoever in respect of:-
1 - any liability arising under the Consumer Protection Act 1987 unless such liability is caused by the negligent act or omission of the Seller in the manufacture and/or supply of goods; and
2 - any negligent or wilful act or omission of the Buyer in relation to the use, sale or supply of goods.
Nothing contained in these conditions shall purport to exclude or restrict any liability the exclusion or restriction of which is prohibited by Section 2(1 and Section 6(1) of the Unfair Contract Terms Act 1977 provided however that this condition 6.6 shall not apply to any such contract as is described in Section 26(3) of the Act.
Neither second-hand nor reconditioned goods are warranted by the Seller and are bought as seen and the Buyer acknowledges that, save as to such (if any) of the representations by the Seller set out herein, the Buyer has not entered into this agreement in reliance wholly or partly on any statement or representation made by the Seller or any person purporting to act on behalf of the Seller.
Prices and Terms of Payment
Unless otherwise indicated or agreed in writing by the Seller:-
All prices and charges, wheresoever appearing, are:-
1 - exclusive of VAT and, where applicable. Any additional or substitute taxes, fees or charges whatsoever, all of which shall be paid by the Buyer.
2 - Subject to the Buyer paying to the Seller the cost of any increase in the price of the goods or any component parts thereof charged to the Seller by any manufacturer of the goods or such component parts.
If, as part of the price, the Seller has agreed to take from the Buyer by way of part exchange foods belonging to the Buyer the Seller has for the purpose of determining the value of the goods to be purchased from the Buyer relied upon the statements and representations made by the Buyer to the Seller and if, upon inspection of the goods to be taken in part exchange do not conform strictly and in all respects with the representations made by the Buyer, then and in such event the sum allowed by the Seller to the Buyer in respect of such goods shall be adjusted as the Seller shall in its absolute discretion determine.
All prices, wheresoever appearing, are unpacked ex-works.
The Seller may, at its discretion, revise contract prices at any time before delivery to take account of alteration or modification as provided in condition 4, variations in the cost of labour, services, overheads, materials, purchased components or finished goods used in fulfilment of the contract, freight, transport and also variations due to legislation, governmental orders, changes in any national agreement covering wages and conditions and in regulations or guidelines applying directly or indirectly to goods including but without any limitation, changes in currency exchange rates.
All accounts are strictly net and payment without any discount or deferment on account of disputes or costs claimed is due on delivery of the goods, in default of which the Seller shall be entitled to interest on the amount overdue from time to time at the rate of 4% above Midland Bank plc base rate then in force.
Goods will be delivered ex-works.
Risk in goods shall pass to the Buyer on delivery.
All delivery dates or periods are approximate and in no circumstances will they form part of a contract. The Seller will use all reasonable endeavours to deliver by the date or within the period specified or, if no date or period is specified, within a reasonable time; however, no liability will be accepted for any expense, loss or damage, whether direct or consequential, occasioned by delay in deliver howsoever caused.
Without prejudice to the rest of this condition or to the Seller’s other rights, if the Buyer fails for any reason to take delivery of goods within fourteen days of the Seller notifying the Buyer of their readiness for collection, the Seller shall be entitled to deliver such goods by storing them or procuring their storage, the cost of such storage being added to the price of the stored goods in the daily basis.
Retention of Title
Property of goods supplied under a contract shall not pass until the first of the following occurs:-
1 - payment by the Buyer of, the total invoice value
2 - the Buyer in the ordinary course of business incorporating goods into a new product so that they cannot be severed from it or cannot be severed without materially damaging its component parts, in which case property will pass in such incorporated goods only.
Until property in goods passes as above, the Buyer shall hold them as bailee for the Seller and, with relation to those goods;
1 - the Buyer may sell, use or consume goods in the ordinary course of business; goods; or any new products incorporating goods in which property has not passed
the Buyer shall sell as the Seller’s fiduciary agent and pay all proceeds into a separate bank account so that such proceeds shall belong to the Seller, save that the Buyer shall not so account for any amount exceeding the total invoice value of the contract less any payments already made. The Buyer shall provide, and shall authorise its bank to provide the Seller with any information it may require about the above account. This condition 9.2.2 shall apply equally to ales of new products incorporating goods in which property has passed under condition 9.12.2, notwithstanding such passing of property, until payment by the Buyer of the total invoice value of the contract.
2 - any goods remaining in the Buyer’s possession shall be kept insured against the usual risks, marked and stored separate from other property of the Buyer and/or third party so as to be clearly identifiable as the Seller’s and, where new products incorporate goods in which property has not passed, the Buyer shall keep sufficient records to enable such products to be identified and such incorporated goods to be quantified and identified as the Seller’s
3 - any contract for sale by the Buyer of goods or new products incorporating goods shall be written and expressly state that the Buyer sells as sole principal and owner of such goods or new products. This sub-condition shall in no way derogate from the relationship of principal and fiduciary agent between the Seller and Buyer created by this condition and which is strictly limited to the express powers granted to the Buyer pursuant to this condition.
4 - The powers of the Buyer referred to in sub-condition 9.2.1 shall be terminated by the Seller:
If any payment under the contract is due and outstanding for seven days or the Seller has bona fide doubts as to the Buyer’s solvency;
If the Buyer is the subject of a petition for bankruptcy order or of an application for an interim order under Part VIII of the Insolvency Act 1986 or compounds with its creditors or has a receiver or manager appointed in respect of all or any part of its assets or is the subject) of any application for an administration order or of any proposal for voluntary arrangement under Part 1 of the Insolvency Act 1986 or enters into liquidation whether compulsorily or voluntarily otherwise that for the purpose of amalgamation or reconstruction and in such manner that the company resulting from such amalgamation or reconstruction shall if a different legal entity) effectively agree to be bound by and assume the obligations on the part of the Buyer under the contract;
such termination to be by written notice in the case of condition 9.2.5 (i), otherwise automatic, whereupon the Buyer shall forthwith place foods in which property has not passed and which remain unsold in its possession or under its control at the disposal of the Seller who shall be entitled to enter the Buyer’s premises and remove them.
The Buyer warrants that all goods to be sold by the Buyer to the Seller by way of part exchange are the absolute property of the Buyer and that the same are not subject to any hire purchase agreement, leasing agreement, charge or lien nor are the same the subject of any dispute or proceedings.
On the occurrence of any of the events mentioned in condition 9.2.5 (ii), or if the Buyer for any reason fails to pay any sum from time to time due under a contract, the Seller shall thereupon be entitled, without prejudice to its other rights, forthwith to terminate any contract or any unfulfilled part thereof.
The Seller shall be entitled, without liability on its part and without prejudice to its other rights, to terminate a contract or any unfulfilled part thereof, or, at its option, to suspend or make partial delivery if the supply of goods by the Seller or by its suppliers is prevented, hindered or delayed whether directly or indirectly by reason of any cause whatsoever beyond the Seller’s or its suppliers’ reasonable control, whether such cause existed on the date when the contract was made or not.
Law Governing the Contract and Jurisdiction
The contract shall in all respects be construed and operated as an English contract governed by English law and any dispute arising out of or in connection therewith shall be referred to the English courts to the jurisdiction of which the parties hereby submit
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