1.1 These General Conditions shall apply to all tenders, offers, quotations, acceptances, deliveries and agreements relating to the sale of goods by the seller (“Goods”).
2.1 The price for the Goods will be charged at the prices ruling at the time of delivery unless otherwise stated is inclusive of carriage, insurance and import or export duty but exclusive of any value added tax or other applicable sales tax which will be added to the sum in question.
2.2 Prices are subject to increase to reflect any increase in costs to the Seller (including without limitation costs of materials, labour, transport and services and fluctuations in currency exchange rates and any tax, duty, fee or charge imposed by any government or other authority) prior to delivery.
3.1 Unless otherwise agreed in writing by the Seller, the price of the Goods shall become due for payment by the Buyer on the date being one calendar month from the date of the invoice. Time for payment is of the essence and no payment will be deemed to have been received until the Seller has received cleared funds.
3.2 The Seller reserves the right at any time before proceeding or proceeding further with the order for Goods to demand full or partial payment under the Contract or of any moneys due and payable under any other contract between the Seller and the Buyer.
3.3 All payments to be made by the Buyer under the Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any nature counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless the Buyer is required by law to make any such deduction or withholding.
4.1 The Seller will use reasonable endeavours to deliver each of the Seller’s orders for the Goods within the time agreed when the Contract is formed and, if no time is agreed, the within a reasonable time. If despite these endeavours, the Seller is unable for any reason to fulfil any delivery or performance on the specified date, the Seller will be deemed not to be in breach of this Contract, nor (for the avoidance of doubt) will the Seller have any liability to the Buyer for direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused (including as a result of negligence) by any delay or failure in delivery except as set out in this condition.
4.2 The Buyer shall be solely responsible for the proper unloading of Goods. If, to assist the Buyer remove the Goods from point of delivery, the Seller or any sub-contractor does any loading or unloading of Goods free of charge, no liability whatsoever shall thereby be incurred by the Seller (save for death or personal injury caused by the Seller’s negligence) or its subcontractor and the Buyer shall indemnify the Seller in respect thereof.
4.3 The Seller may deliver the Goods by separate instalments. Each separate instalment will be a separate contract and invoiced and paid for in accordance with the provisions of the Contract. No cancellation or termination of any one contract relating to an instalment will entitle the Buyer to repudiate or cancel any other contract or instalment.
5. BUYER’S OBLIGATIONS AND CLAIMS ON DELIVERY
5.1 The Buyer will: –
– examine Goods carefully immediately upon delivery:
– notify the Seller in writing within 3 days after delivery of any error in quantity or description of Goods delivered or that they were mixed with others not included in the Contract or of any damage to Goods revealed by such examination and not caused since delivery was taken; and
– notify the Seller in writing within 7 days of date of the Seller’s invoice or advice note if Goods the subject of the invoice or advice note have not been received.
5.2 If the Buyer fails to take delivery of any of the Goods within a reasonable time of their being ready for delivery or to provide any instructions, documents, licences or authorisations required to enable the Goods to be delivered on time (except solely on account of the Seller’s default) the Goods will be deemed to have been delivered on the due date and (without prejudice to its other rights).
6. RISK OF LOSS
Risk of damage to or loss of the Goods shall pass to the Buyer when Goods are delivered to the Buyer or its agents.
7. TITLE TO GOODS
7.1 Ownership of the Goods will not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of:
– the Goods; and
– all other sums which are or which become due to the Seller from the Buyer on any account.
7.2 Until ownership of the Goods has passed to the Buyer, the Buyer must;
– store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property;
– not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
– maintain the Goods in satisfactory condition insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller and will whenever requested by the Seller produce a copy of the policy of insurance.
7.3 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyers right to possession has terminated to recover them.
7.4 Where the Seller is unable to determine whether any Goods are the Goods in respect of which the Buyer’s right to possession has terminated , the Buyer will be deemed to have sold all Goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.
8. WARRANTY OF SELLER
8.1 The Seller warrants that it has the right to sell the Goods and that the Goods are free from any charge or encumbrance unknown to the Buyer.
8.2 The Seller warrants that it will, free of charge, within a period of 3 months from the date of delivery of Goods which are proved to the reasonable satisfaction of the Seller to be damaged or defective, repair, or at its option, replace such Goods, provided:
-the buyer notifies the Seller of any defect or suspected defect within 3 days of the delivery where the defect should be apparent on reasonable inspection, or within 3 days of the same coming to the knowledge of the Buyer where the defect is not one which should be apparent on reasonable inspection, and in any event no later than 3 months from the date of delivery; and
– the Seller shall be entitled and shall be afforded facilities to inspect and test the Goods as it thinks fit; and
– the Goods are defective as result of a defect in materials or workmanship or are otherwise not in accordance with the Contract; and
– no one other than the Seller has so dealt or tampered with the Goods as to contribute to their defectiveness and that the Goods have been properly used, handled, maintained, stored and serviced (where appropriate) and have not been used whilst allegedly defective or otherwise not in accordance with the Contract or order.
8.3 The Seller will refund to the Buyer the cost of carriage on the return of any such defective or damaged Goods, and will deliver any repaired or replacement Goods to the Buyer at the Seller’s own expense.
8.4 Where Goods or any part thereof are supplied designed or manufactured other than by the Seller, the Seller’s obligations to the Buyer shall not exceed those owned to the Seller by the relevant supplier designer or manufacturer.
9. LIMITATION OF SELLER’S LIABILITY
9.1 The Seller does not exclude its liability (if any) to the Buyer: for breach of the Seller’s obligations arising under section 12 Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982. for personal injury or death resulting from the Seller’s negligence; under section 2 (3) Consumer Protection Act 1987; for any matter which it would be illegal for the Seller to exclude or to attempt to exclude its liability; or for fraud.
9.2 Except as provided in General Conditions 4, 8 and 9.1, the Seller will be under no liability to the Buyer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss; loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with: any of the goods, or the manufacture or sale or supply, or failure or delay in supply, of the Goods by the Seller or on the part of the Seller’s employees, agents or sub-contractors;
– any breach by the Seller of any of the express or implied terms of the Contract; any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods, or any statement made or not made, or advice given or not given, by or on behalf of the Seller.
10. INDEMNITY BY BUYER
The Buyer agrees to indemnify the Seller against all claims relating to or arising from Goods relating to any loss damage or expenses sustained by any third party (howsoever caused) save for death or personal injury caused by the Seller’s negligence.
11. TRADE MARKS
The Buyer shall have no right to apply to Goods any trade mark owned or used by the Seller.
12. DEFAULT BY BUYER
12.1 The Seller may by notice in writing served on the Buyer terminate the Contract immediately if the Buyer;
– is in material breach of any of the terms of the Contract and, where the breach is capable of remedy, the Buyer fails to remedy such breach within 14 days service of a written notice from the Seller, specifying the breach and requiring it to be remedied. Failure to pay any sums due in accordance with General Condition 4.1 is a material breach of the terms of the Contract which is not capable of remedy;
– becomes bankrupt, insolvent, makes any composition with his creditors, has a receiver appointed under the Mental Health Act 1983 or dies;
– has any distraint, execution or other process levied or enforced on any of its property; or
– ceases to trade or appears in the reasonable opinion of the Seller likely or is threatening to cease to trade within one month.
12.2 The termination of the Contract howsoever arising is without prejudice to the rights, duties and liabilities of either the Buyer or the Seller accrued prior to termination.
12.3 The Seller will be entitled to suspend any deliveries otherwise due to occur following service of a notice specifying a breach under General Condition 13.1 (i) until either the breach is remedied or the Contract terminates, whichever occurs first.
12.4 Upon termination all the Seller’s unpaid invoices to the Buyer shall be immediately due for payment but without prejudice to any claim or right which the Seller might otherwise make or exercise or have against the Buyer.
13.1 Any notice, demand or communication in connection with the Contract will be in writing and may be delivered by hand, post, facsimile (but not by e-mail), addressed to the recipient at its registered office or any other address (including a facsimile number) notified to the other party in writing in accordance with this General Condition as an address to which notices, invoices and other documents may be sent. The notice, demand or communication will be deemed to have been duly served;
– if delivered by hand, at the time of delivery;
– if delivered by post, 48 hours after being posted or in the case of Airmail 7 days) excluding Saturdays, Sundays and public holidays) after being posted; or
– if delivered by facsimile, at the time of transmission, provided that a confirming copy is sent by first class post to the other party within 24 hours after transmission.
14. NO ASSIGNMENT
The Contract of which these Conditions form part shall be personal to the Buyer and shall not nor shall any rights under it be assigned by the Buyer without the written consent of the Seller.
15.1 If any condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will to the extent required be severed from the Contract and will be ineffective without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect.
15.2 The Contract contains all the terms which the Seller and the Buyer have agreed in relation to the Goods and supersedes any prior written or oral agreements, representations or understandings between the parties relating to the Goods. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in this General Condition will exclude any liability which either party would otherwise have to the other in respect of any statements made fraudulently.
15.3 No failure or delay by the Seller to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
16. GOVERNING LAW
These conditions and the Contract of which they form part shall be construed in accordance with English law and the English Courts will have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Contract. The parties agree to submit to that jurisdiction.