STANDARD TERMS AND CONDITIONS FOR THE SALE OF GOODS
1. INTERPRETATION
1.1 In these Conditions:
Buyer - Means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.
Goods - Means the goods (including any installment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions and any goods supplied in substitution for or in replacement of or in addition to such goods
Seller
Conditions - Means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller
Contract - Means the contract for the purchase and sale of the Goods
Writing -Includes telex, cable, fax, email and comparable means of communication.
1.2Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3The headings in these Conditions are for convenience only and shall not affect their interpretation.
2.BASIS OF THE SALE
2.1The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be made, by the Buyer.
2.2No variation to these conditions shall be binding unless agreed in Writing between the authorized representatives of the Buyer and the Seller
2.3The Seller’s employees or agents are not authorized to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4Any advice or recommendation given by the seller or its employees or agents to the buyer or its employees or agents as to the storage, application or use of the goods which is not confirmed in writing by the seller is followed or acted upon entirely at the buyer’s risk, and accordingly the seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3.ORDERS AND SPECIFICATIONS
3.1No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by the Seller’s authorized representative.
3.2The buyer shall be responsible to the Seller for insuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3The quantity, quality and description of and any specification for the goods shall be those set out in the Seller’s quotation (if accepted by the Buyer )or the Buyer’s order (if accepted by the Seller).
3.4If the goods are to be manufactured or any process is to be applied to the goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim of infringement of any patent, copyright, design, trade mark or other industrial or intellectual copy rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.5The Seller reserves the right to make any changes in the specification of the goods which are required to conform with any applicable safety or any other statutory requirements or, where the goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the seller and the Buyer shall indemnify the Seller in full or against all loss (including loss of profit) costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of any cancellation. Without prejudice to the generality of foregoing, should the Buyer purport without agreement in writing of the Seller to cancel any order which has been accepted by the Seller or refused to accept delivery of any of the goods such action shall constitute a breach of the Agreement and, at the option of the Seller, the Seller shall be entitled to require the Buyer to pay to the Seller by way of liquidated damages an amount equivalent to 25% of the invoice value of the order so purported to be cancelled or 25% of the invoice value of the goods delivery of which is so refused (as the case may be). In the event of the Seller so requiring, the Buyer shall pay such amount to the Seller (without any deduction) within 7 days of receiving from the Seller written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monitory value of the loss and damage likely to be suffered by the Seller as a result of such breach of agreement on the part of the Buyer. For the avoidance of doubt in the event that the Seller opts to require the Buyer to pay liquidated damages as set out above and the Buyer duly pays such liquidated damages, neither party shall have any further liability to the other in relation to the goods in respect of which such liquidated damages are paid.
4.PRICE OF THE GOODS
4.1The price of the goods shall be the Seller’s quoted price, or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. Where the goods are supplied for export from the United Kingdom, the Seller’s published export price list relating to the country of destination shall apply. All prices quoted are valid for 30 days only or such lesser period as shall be stated by the Seller on the face of the relevant quotation or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture) any change in delivery dates, quantities or specifications for the goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on a carriage paid basis in the case of goods supplied for delivery within the British Isles.
4.4The price is exclusive of any applicable value added tax which the Buyer shall be additionally liable to pay to the Seller.
5.TERMS OF PAYMENT
5.1Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the goods on or at any time after delivery of the goods, unless the goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the goods are ready for collection or (as the case may be) the Seller has tendered delivery of the goods.
5.2Subject to any other terms which have expressly been agreed in writing between the Seller and the Buyer and provided no previous invoice is overdue, the Buyer shall be entitled to an early payment discount of 3.75% of the price of the goods (excluding any charge for transport, packaging or insurance and any part of the price which represents vat) where in payment in full is made within 7 days of the date of the Seller’s invoice or a prompt payment discount of 2.5% of the price of the goods (excluding as aforesaid) where invoices issued between the 20th day of any calendar month and the 19th day of the following calendar month are paid in full by the 10th day of the 3rd calendar month.
5.3Save as may otherwise be expressly agreed in writing between the Seller and the Buyer, the Buyer shall pay invoices issued by the Seller between the 20th day of any calendar month and the 19th day of the following calendar month by the 10th day of the 3rd calendar month. The Buyer shall pay all invoices less any discount to which the Buyer is entitled, but without any other deduction and notwithstanding that delivery may not have taken place and the property in the goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts of payment will be issued only upon request.
5.4If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.4.1Cancel the Contract or suspend any further deliveries to the Buyer;
5.4.2Appropriate any payment made by the Buyer such of the goods (or the goods supplied under any other Contract between the Buyer and the Seller) as the Seller may think fit (not withstanding any purported appropriation by the Buyer) and
5.4.3Charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4% per annum above HSBC Bank plc base rate from time to time, until payment in full is made. (A part of a month being treated as a full month for the purpose of calculating interest).
5.5In the event that the Seller shall cancel the Contract under the provisions of Clause 5.4.1 above the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation. Without prejudice to the generality of the foregoing, at the option of the Seller the Seller shall be entitled to require the Buyer to pay to the Seller by way of liquidated damages an amount equivalent to 25% of the invoice value so cancelled. In the event of the Seller so requiring, the Buyer shall pay such amount to the Seller (without any deduction) within 7 days of receiving from the Seller written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monitory value of the loss and damage likely to be suffered by the Seller as a result of such cancellation.
6.Delivery
6.1Delivery of the goods shall be made by the Buyer collecting the goods at the Sellers premises at any time after the Seller has notified the Buyer that the goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the goods to that place.
6.2Any dates quoted for delivery of the goods are approximate only and the Seller shall not be liable for any delay in delivery of the goods howsoever caused. Time for delivery shall not be of the essence un less previously agreed by the Seller in writing. The goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. The Seller shall be entitled to make part delivery of the goods at any time.
6.3Where the goods are delivered in installments, each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more of the installments in accordance with these conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4If the Seller fails to deliver the goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the goods.
6.5If the Buyer fails to take delivery of the goods or fails to give adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1Store the goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.5.2Sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7.RISK AND PROPERTY
7.1Risk of damage to or loss of the goods shall pass to the Buyer:
7.1.1In the case of the goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the goods are available for collection: or
7.1.2In the case of goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the goods, the time when the Seller has tendered delivery of the goods.
7.2Notwithstanding delivery and the passing of risk in the goods, or any other provision of these conditions, the property in the goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the goods and payment in full of all sums due from the Buyer to the Seller whether under the Contract or by virtue of any other liability of the Buyer to the Seller.
7.3Until such time as the property in the goods passes to the Buyer, the Buyer shall hold the goods as the Seller’s fiduciary agent and bailee, and shall keep the goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the goods in the ordinary cause of its business, but shall account to the Seller for such part of the proceeds of sale of otherwise of the goods, whether tangible or intangible, including insurance proceeds, as is equivalent to the invoice value of the goods and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds properly stored, protected and insured.
7.4Until such time as the property in the goods passes to the Buyer (and provided the goods are still in existence and have not been resold) the Seller shall be entitled at any time to required the Buyer to delivery up the goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the goods are stored and repossess the goods.
7.5The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
7.6For the avoidance of doubt, nothing contained in this clause 7 shall entitle the Buyer to return any of the goods to the Seller save as expressly provided in these terms and conditions or as expressly agreed in writing between the Seller and the Buyer.
8.WARRANTIES AND LIABILITY
8.1Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification subject to such tolerances as are reasonable and as are normally accepted in the trade and will be free from defects in material and workmanship at the time of delivery.
8.2The above warranty is given by the Seller subject to the following conditions:
8.2.1The Seller shall be under no liability in respect of any defect in the goods arising from any drawing, design or specification supplied by the Buyer.
8.2.2The Seller shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the goods without the Seller’s approval.
8.2.3The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the goods has not been paid by the due date for payment.
8.2.4The above warranty does not extend to goods not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.3Subject as expressly provided in these conditions, and except where the goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) , all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4Where the goods are sold under a consumer transaction (as defined by the Consumer Transactions restrictions on statements) Order 1976 the statutory rights of the Buyer are not affected by these conditions.
8.5Any claim by the Buyer which is based on any defect in the quality or condition of the goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 28 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the goods had been delivered in accordance with the Contract.
8.6Any claim by the Buyer which is based on short delivery or non delivery shall be notified to the carrier and the Seller in writing (in the case of short delivery) within 3 days of delivery and (in the case of non delivery) within 10 days of receipt by the Buyer of the Seller’s invoice for the goods which the Buyer claims have not been delivered. If the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject any goods which have been delivered and the Seller shall have no liability for such short delivery or non delivery.
8.7Where any valid claim in respect of any of the goods which is based on any defect in the quality or condition of the goods or their failure to meet specification is notified to the Seller in accordance with these conditions, the Seller shall be entitled to replace the goods or (refund to the Buyer the price of the goods) (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.
8.8Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the goods or their use or resale by the Buyer, except as expressly provided in these conditions.
8.9The Seller shall not be liable to the Buyer or deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.9.1Act of God, explosion, flood, tempest, fire or accident;
8.9.2War or threat of war, sabotage insurrection, civil disturbance, or requisition;
8.9.3Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.9.4Import of export regulations or embargoes;
8.9.5Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.9.6Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.9.7Power failure or break down in machinery.
9.INSOLVENCY OF BUYER
9.1This clause applies if:
9.1.1The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction): or
9.1.2An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
9.1.3The Buyer ceases, or threatens to cease, to carry on business; or
9.1.4The Seller reasonably apprehends that any of the events mentioned above is about to occur to the Buyer and notifies the Buyer accordingly.
9.2If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer,, and if the goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10.EXPORT TERMS
10.1In these conditions ‘Incoterms ‘ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these conditions, but if there is any conflict between the provisions of Incoterms and these conditions, the latter shall prevail.
10.2Where the goods are supplied for export from the United Kingdom, the provisions of this clause 10 shall (subject to any special terms agreed in writing between the buyer and the seller) apply notwithstanding any other provisions of these conditions.
10.3The buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and notifying to the Seller the requirements of any such legislation or regulations requiring action on the part of the Seller and for the payment of any duties in connection with the Goods.
10.4Unless otherwise agreed in writing between the Buyer and the Seller, the goods shall be delivered fob the air or sea port of shipment and the Seller shall be under no obligation to give notice under section 32 (3) of the Sale of Goods Act 1979.
10.5The Buyer shall be responsible for arranging for testing and inspection of the goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the goods which would be apparent on inspection and which is made after shipment, or in respect of damage during transit.
10.6Payment of all amounts due to the Seller shall be made in such manner as shall be agreed between the Seller and the Buyer in writing.
11.GENERAL
11.1Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principal place of business or such address as may at the relevant time have been notified pursuant to this provision to the party given the notice.
11.2No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3If any provisions of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.
11.4The Contract shall be governed by the laws of England.
1. INTERPRETATION
1.1 In these Conditions:
Buyer - Means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.
Goods - Means the goods (including any installment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions and any goods supplied in substitution for or in replacement of or in addition to such goods
Seller
Conditions - Means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller
Contract - Means the contract for the purchase and sale of the Goods
Writing -Includes telex, cable, fax, email and comparable means of communication.
1.2Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3The headings in these Conditions are for convenience only and shall not affect their interpretation.
2.BASIS OF THE SALE
2.1The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be made, by the Buyer.
2.2No variation to these conditions shall be binding unless agreed in Writing between the authorized representatives of the Buyer and the Seller
2.3The Seller’s employees or agents are not authorized to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4Any advice or recommendation given by the seller or its employees or agents to the buyer or its employees or agents as to the storage, application or use of the goods which is not confirmed in writing by the seller is followed or acted upon entirely at the buyer’s risk, and accordingly the seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3.ORDERS AND SPECIFICATIONS
3.1No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by the Seller’s authorized representative.
3.2The buyer shall be responsible to the Seller for insuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3The quantity, quality and description of and any specification for the goods shall be those set out in the Seller’s quotation (if accepted by the Buyer )or the Buyer’s order (if accepted by the Seller).
3.4If the goods are to be manufactured or any process is to be applied to the goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim of infringement of any patent, copyright, design, trade mark or other industrial or intellectual copy rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.5The Seller reserves the right to make any changes in the specification of the goods which are required to conform with any applicable safety or any other statutory requirements or, where the goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the seller and the Buyer shall indemnify the Seller in full or against all loss (including loss of profit) costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of any cancellation. Without prejudice to the generality of foregoing, should the Buyer purport without agreement in writing of the Seller to cancel any order which has been accepted by the Seller or refused to accept delivery of any of the goods such action shall constitute a breach of the Agreement and, at the option of the Seller, the Seller shall be entitled to require the Buyer to pay to the Seller by way of liquidated damages an amount equivalent to 25% of the invoice value of the order so purported to be cancelled or 25% of the invoice value of the goods delivery of which is so refused (as the case may be). In the event of the Seller so requiring, the Buyer shall pay such amount to the Seller (without any deduction) within 7 days of receiving from the Seller written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monitory value of the loss and damage likely to be suffered by the Seller as a result of such breach of agreement on the part of the Buyer. For the avoidance of doubt in the event that the Seller opts to require the Buyer to pay liquidated damages as set out above and the Buyer duly pays such liquidated damages, neither party shall have any further liability to the other in relation to the goods in respect of which such liquidated damages are paid.
4.PRICE OF THE GOODS
4.1The price of the goods shall be the Seller’s quoted price, or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. Where the goods are supplied for export from the United Kingdom, the Seller’s published export price list relating to the country of destination shall apply. All prices quoted are valid for 30 days only or such lesser period as shall be stated by the Seller on the face of the relevant quotation or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture) any change in delivery dates, quantities or specifications for the goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on a carriage paid basis in the case of goods supplied for delivery within the British Isles.
4.4The price is exclusive of any applicable value added tax which the Buyer shall be additionally liable to pay to the Seller.
5.TERMS OF PAYMENT
5.1Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the goods on or at any time after delivery of the goods, unless the goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the goods are ready for collection or (as the case may be) the Seller has tendered delivery of the goods.
5.2Subject to any other terms which have expressly been agreed in writing between the Seller and the Buyer and provided no previous invoice is overdue, the Buyer shall be entitled to an early payment discount of 3.75% of the price of the goods (excluding any charge for transport, packaging or insurance and any part of the price which represents vat) where in payment in full is made within 7 days of the date of the Seller’s invoice or a prompt payment discount of 2.5% of the price of the goods (excluding as aforesaid) where invoices issued between the 20th day of any calendar month and the 19th day of the following calendar month are paid in full by the 10th day of the 3rd calendar month.
5.3Save as may otherwise be expressly agreed in writing between the Seller and the Buyer, the Buyer shall pay invoices issued by the Seller between the 20th day of any calendar month and the 19th day of the following calendar month by the 10th day of the 3rd calendar month. The Buyer shall pay all invoices less any discount to which the Buyer is entitled, but without any other deduction and notwithstanding that delivery may not have taken place and the property in the goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts of payment will be issued only upon request.
5.4If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.4.1Cancel the Contract or suspend any further deliveries to the Buyer;
5.4.2Appropriate any payment made by the Buyer such of the goods (or the goods supplied under any other Contract between the Buyer and the Seller) as the Seller may think fit (not withstanding any purported appropriation by the Buyer) and
5.4.3Charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4% per annum above HSBC Bank plc base rate from time to time, until payment in full is made. (A part of a month being treated as a full month for the purpose of calculating interest).
5.5In the event that the Seller shall cancel the Contract under the provisions of Clause 5.4.1 above the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation. Without prejudice to the generality of the foregoing, at the option of the Seller the Seller shall be entitled to require the Buyer to pay to the Seller by way of liquidated damages an amount equivalent to 25% of the invoice value so cancelled. In the event of the Seller so requiring, the Buyer shall pay such amount to the Seller (without any deduction) within 7 days of receiving from the Seller written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monitory value of the loss and damage likely to be suffered by the Seller as a result of such cancellation.
6.Delivery
6.1Delivery of the goods shall be made by the Buyer collecting the goods at the Sellers premises at any time after the Seller has notified the Buyer that the goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the goods to that place.
6.2Any dates quoted for delivery of the goods are approximate only and the Seller shall not be liable for any delay in delivery of the goods howsoever caused. Time for delivery shall not be of the essence un less previously agreed by the Seller in writing. The goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. The Seller shall be entitled to make part delivery of the goods at any time.
6.3Where the goods are delivered in installments, each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more of the installments in accordance with these conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4If the Seller fails to deliver the goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the goods.
6.5If the Buyer fails to take delivery of the goods or fails to give adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1Store the goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.5.2Sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7.RISK AND PROPERTY
7.1Risk of damage to or loss of the goods shall pass to the Buyer:
7.1.1In the case of the goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the goods are available for collection: or
7.1.2In the case of goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the goods, the time when the Seller has tendered delivery of the goods.
7.2Notwithstanding delivery and the passing of risk in the goods, or any other provision of these conditions, the property in the goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the goods and payment in full of all sums due from the Buyer to the Seller whether under the Contract or by virtue of any other liability of the Buyer to the Seller.
7.3Until such time as the property in the goods passes to the Buyer, the Buyer shall hold the goods as the Seller’s fiduciary agent and bailee, and shall keep the goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the goods in the ordinary cause of its business, but shall account to the Seller for such part of the proceeds of sale of otherwise of the goods, whether tangible or intangible, including insurance proceeds, as is equivalent to the invoice value of the goods and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds properly stored, protected and insured.
7.4Until such time as the property in the goods passes to the Buyer (and provided the goods are still in existence and have not been resold) the Seller shall be entitled at any time to required the Buyer to delivery up the goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the goods are stored and repossess the goods.
7.5The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
7.6For the avoidance of doubt, nothing contained in this clause 7 shall entitle the Buyer to return any of the goods to the Seller save as expressly provided in these terms and conditions or as expressly agreed in writing between the Seller and the Buyer.
8.WARRANTIES AND LIABILITY
8.1Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification subject to such tolerances as are reasonable and as are normally accepted in the trade and will be free from defects in material and workmanship at the time of delivery.
8.2The above warranty is given by the Seller subject to the following conditions:
8.2.1The Seller shall be under no liability in respect of any defect in the goods arising from any drawing, design or specification supplied by the Buyer.
8.2.2The Seller shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the goods without the Seller’s approval.
8.2.3The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the goods has not been paid by the due date for payment.
8.2.4The above warranty does not extend to goods not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.3Subject as expressly provided in these conditions, and except where the goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) , all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4Where the goods are sold under a consumer transaction (as defined by the Consumer Transactions restrictions on statements) Order 1976 the statutory rights of the Buyer are not affected by these conditions.
8.5Any claim by the Buyer which is based on any defect in the quality or condition of the goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 28 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the goods had been delivered in accordance with the Contract.
8.6Any claim by the Buyer which is based on short delivery or non delivery shall be notified to the carrier and the Seller in writing (in the case of short delivery) within 3 days of delivery and (in the case of non delivery) within 10 days of receipt by the Buyer of the Seller’s invoice for the goods which the Buyer claims have not been delivered. If the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject any goods which have been delivered and the Seller shall have no liability for such short delivery or non delivery.
8.7Where any valid claim in respect of any of the goods which is based on any defect in the quality or condition of the goods or their failure to meet specification is notified to the Seller in accordance with these conditions, the Seller shall be entitled to replace the goods or (refund to the Buyer the price of the goods) (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.
8.8Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the goods or their use or resale by the Buyer, except as expressly provided in these conditions.
8.9The Seller shall not be liable to the Buyer or deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.9.1Act of God, explosion, flood, tempest, fire or accident;
8.9.2War or threat of war, sabotage insurrection, civil disturbance, or requisition;
8.9.3Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.9.4Import of export regulations or embargoes;
8.9.5Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.9.6Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.9.7Power failure or break down in machinery.
9.INSOLVENCY OF BUYER
9.1This clause applies if:
9.1.1The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction): or
9.1.2An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
9.1.3The Buyer ceases, or threatens to cease, to carry on business; or
9.1.4The Seller reasonably apprehends that any of the events mentioned above is about to occur to the Buyer and notifies the Buyer accordingly.
9.2If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer,, and if the goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10.EXPORT TERMS
10.1In these conditions ‘Incoterms ‘ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these conditions, but if there is any conflict between the provisions of Incoterms and these conditions, the latter shall prevail.
10.2Where the goods are supplied for export from the United Kingdom, the provisions of this clause 10 shall (subject to any special terms agreed in writing between the buyer and the seller) apply notwithstanding any other provisions of these conditions.
10.3The buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and notifying to the Seller the requirements of any such legislation or regulations requiring action on the part of the Seller and for the payment of any duties in connection with the Goods.
10.4Unless otherwise agreed in writing between the Buyer and the Seller, the goods shall be delivered fob the air or sea port of shipment and the Seller shall be under no obligation to give notice under section 32 (3) of the Sale of Goods Act 1979.
10.5The Buyer shall be responsible for arranging for testing and inspection of the goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the goods which would be apparent on inspection and which is made after shipment, or in respect of damage during transit.
10.6Payment of all amounts due to the Seller shall be made in such manner as shall be agreed between the Seller and the Buyer in writing.
11.GENERAL
11.1Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principal place of business or such address as may at the relevant time have been notified pursuant to this provision to the party given the notice.
11.2No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3If any provisions of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.
11.4The Contract shall be governed by the laws of England.