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| CONDITIONS OF SALE – (BEECROFT) The “Seller” |
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1. The Contract
The only terms and conditions of contract between the Seller and the Purchaser
shall be those set out below unless other terms are expressly accepted in
writing by an authorised employee of the Seller.
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2. Catalogues, Drawings, Sketches
(1) All statements (whether written or oral), descriptions, drawings, sketches,
photographs, illustrations, diagrams or specifications concerning the goods
made or given by or on behalf of the Seller before contract, whether in
catalogues, brochures, price lists or otherwise, are for the purposes of
information and guidance only and shall and shall not form any part of the
contract or give rise to any independent or collateral liability of the Seller.
(2) Where goods are sold by reference to description in a catalogue, the goods
are sold subject to the tolerances and variations expressed or implied in the
catalogue. In that design and sources of supply may change from time to time
and the Seller shall have a right to supply goods of altered design or from the
new source of supply.
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3. Prices
(1) All goods will be supplied at the price and the rate of Value Added Tax
(V.A.T.) ruling on the date of despatch.
(2) All prices shown in catalogues, brochures or price lists are net ex works
prices exclusive of V.A.T., and are for guidance only. The Seller reserves the
right to vary such prices at any time at its discretion.
(3) Quotations expressed to be for a fixed price, remain open for acceptance by
the Purchaser within a period stated in the quotation or, if no period is
stated, within 30 days of the date of the quotation irrespective of when the
quotation is received by the Purchaser.
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4. Payment
(1) For all sales in the United Kingdom payment of the full price (including
any V.A.T.) and any additional transport, insurance, packing and/or additional
costs must be made within 30 days of the invoice date. If the Purchaser
defaults in payment, without prejudice to its other rights the Seller may
charge interest on the sum due at the rate of 3% above Midland Bank plc base
rate (or its equivalent) for the time being in force for the period from the
date when the sum became due to the date of actual payment to the Seller (as
well after as before any judgement).
(2) For any sale outside the United Kingdom the Purchaser shall, unless other
arrangements are agreed by the Seller in writing, establish an irrevocable
letter of credit confirmed by a bank acceptable to the Seller covering the
purchase price and all shipping, transport, insurance and other additional
costs or charges.
(3) The Seller shall be entitled to increase the price to recover any
additional costs arising from the variation or delay in delivery occasioned by
the Purchaser’s instructions or default. The provisions of paragraph (1) and
(2) above shall apply to such additional costs.
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5. Delivery
(1) The Seller undertakes to use its reasonable endeavours to deliver by
specified delivery dates. However, in all cases delivery dates are estimates
only and without commitment by or obligation on the part of the Seller. The
Purchaser shall not be entitled to cancel or delay or refuse payment should
delivery be made after the specified delivery date.
(2) Unless otherwise agreed by the Seller orders for delivery within the United
Kingdom will be delivered at the Purchaser’s cost by whatever means the Seller
considers appropriate. The cost of insurance and packaging, if any, will be
charged in addition to the price quoted for the goods.
(3) Unless otherwise specified, for all orders for delivery outside the United
Kingdom: -
(a) Cases and other containers, packaging costs, dock
and airport dues, port rates and customs entry, freight
insurance, agency fees and other charges that may be
incurred are chargeable to the Purchaser. Cases and other
containers are not returnable;
(b) Such orders shall be on an f.o.b. basis for
delivery to London docks or London airport charges.
Deliveries to docks or airports other than London may
be charged extra.
(4) The Seller shall be entitled to make delivery of goods in instalments and
the Purchaser shall be obliged to pay for each instalment in accordance with
the Seller’s usual terms. Each instalment of goods delivered under this
contract shall be deemed to be sold under a separate contract any default by
the Seller in delivering any such instalment shall not entitle the Purchaser to
repudiate the contract with regard to any instalments remaining deliverable.
(5) If the Purchaser fails to accept delivery within ten days of notice in
writing that the goods are ready for delivery the Purchaser shall be liable for
all the Seller’s storage and other charges and the Seller shall be entitled,
without prejudice to its other rights, to re-sell or otherwise dispose of the
goods. (6) Claims for shortages or damage to goods before risk passes must be
made within three days of receipt failing which proper delivery shall be
conclusively presumed to have been made.
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6. Conditions, Warranty and Seller’s Liability
(1) Subject to fair wear and tear, and the due observance of any installation,
user, storage, operating or maintenance instructions, the Seller undertakes to
replace or at its option repair free of charge to the Purchaser any goods which
have been manufactured by the Seller and which the Purchaser can establish are
defective by reason of defective workmanship or materials and which are
returned to the Seller carriage paid within six months of the date of receipt
by the Purchaser. In the absence of such a claim being received within such
period as aforesaid the goods shall be deemed to comply in all respects with
the order. Goods returned to the Seller and replaced shall become the Seller’s
property. Any goods not of the Seller’s manufacture are sold only with such
warranty as the manufacturers thereof give to the Seller and as the Seller may
be able to enforce, such items not being warranted or guaranteed by the Seller
in any way.
(2) Unless otherwise expressly given by the Seller in writing, all goods
supplied and/or services carried out under the contract are supplied and/or
carried out without any condition or warranty whether express or implied (by
statute or otherwise) and whether in relation to the physical description or
quality of the goods their fitness for any particular purpose or otherwise.
(3) The Seller’s liability in respect of or consequent upon any defect whether
in original or replaced goods shall be limited to replacement or rectification
only. Save in respect of the absolute prohibitions contained in sections 2 (1)
and 6 (1) of the Unfair Contract Act 1977 on the restriction or exclusion of
liability for death or injury, the Seller shall not in any circumstances
whatsoever be liable, in contract, tort or otherwise, for any consequential
loss or damage arising from any breech of this contract, from any breech of any
condition or warranty implied by law or custom, from misrepresentation by, or
the negligence of, the Seller, its employees or agents, or from the goods, or
any of them, proving defective.
(4) Notwithstanding the foregoing (but subject to the aforementioned absolute
prohibitions) the Seller shall not be liable on any account whatsoever for any
loss, expense or damage: -
(a) Where any work is carried out to the goods by any
person other than the Seller without the Seller’s
previous written consent;
and/or
(b) caused by lack of maintenance and/or inadequate or
faulty maintenance of the goods carried out by the
Purchaser or any third party.
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7. Purchaser’s Duty to Take Care
(1) The goods, especially chemicals, may be dangerous if not properly used or
stored and the appropriate precautions taken. The Purchaser accordingly agrees
that it shall take all such steps as are reasonably practicable or usual to
eliminate or reduce any risk to health and/or safety to which use of the goods
may give rise and acknowledges that where the goods are produced to a design
supplied by the Purchaser, the Seller will not make any research as to the
risks to health and/or safety which may arise from use or storage of the goods.
Where the goods are produced to a design supplied by the Purchaser, the
Purchaser shall comply with all the duties imposed by section 6 of the Health
and Safety at work etc. Act 1974 on designers and further shall comply with all
other duties, which may be implied at law on a designer and/or producer of
goods.
(2) Substances included in “the Poisons List” under the Poisons Act 1972 are
marked “S1”. Orders for these substances must be signed by the Purchaser, who
should state his name, address and trade or business.
(3) The Purchaser shall indemnify the Seller against any claims, proceedings,
costs, loss, damage or liability suffered or incurred by the Seller as a result
of any failure by the Purchaser, or any other person in control of the goods,
to take such steps or ensure compliance with the duties referred to in
paragraphs (1) and (2) above. |
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8. Patents, Designs and Technical Information
(1) The Purchaser shall not use or deal with the goods or the Seller’s
catalogues, brochures or prices lists so as to infringe, interfere with or
weaken any rights of the Seller under or in respect of any patents, processes,
proprietary information, trademarks, registered designs, logos, artwork or
copyright for or in connection with the goods. The Seller shall have no
liability for the infringement of any rights of any third party arising from
the use of the goods in combination with other goods, trademarks or processes
not supplied by the Seller.
(2) Where goods are produced to the design or specification of the Purchaser,
the Purchaser warrants that such design or specification does not infringe the
rights of any third party and the Purchaser shall indemnify the Seller against
all claims, proceedings, costs, loss, damage or liability suffered or incurred
by the Seller in respect thereof.
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9. Passing of Risk and Property
(1) The risk in the goods shall pass: -
(a) on orders for delivery within the United Kingdom on
delivery to the Purchaser or a carrier (as the case may
be) at the Sellers works;
(b) on orders for delivery outside the United Kingdom,
on delivery f.o.b. to the port notified hereunder.
(2)
(a) No title in the goods shall pass to the Purchaser
until the goods have been paid for in full nor shall
any title pass until all sums owed by the Purchaser to
the Seller on any account whatsoever have been paid in full.
(b) Until such time that the title passes to the
Purchaser the Purchaser shall hold the goods as bailee
for the Seller and shall store the goods separately and
keep them in such a way that they can be readily
identified as being the Seller’s property. The
Purchaser hereby grants to the Seller the right of entry
to the Purchaser’s premises for the purpose of
repossessing the goods (or any part or parts thereof)
at any time prior to the passing of title in accordance
with sub-paragraph (a) above.
(c) Without prejudice to the provisions of
sub-paragraph (b) above, until such time as title
passes to the Purchaser:
(aa)the Purchaser shall be
entitled to use the goods but if the goods are
processed by the Purchaser so
as to form a new product, title to the new
product shall be deemed to be
vested in the Seller in the proportion of
the value of the goods supplied
by the Seller to the new product;
and
(bb)the Purchaser shall be
entitled to re-sell the goods but the proceeds
received from any such re-sale
shall be held by the Purchaser as trustee
for the Seller to the extent
necessary to settle the Purchaser’s obligations
to the seller.
(d) The Purchaser’s entitlement to use and/or re-sell
the goods shall automatically cease if a petition is
presented or a meeting is convened for the purpose of
winding up the Purchaser or if the petition for an administration
order is made or receiver (including an administrative
receiver) is appointed in respect of the Purchaser or
if any voluntary arrangement is proposed under section
1 Insolvency Act 1986 in respect of, or if a petition for a bankruptcy
order is made against or an interim receiver is
appointed as the property of, the Purchaser.
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10. Termination and Suspension
(1) The Seller shall have the right, without prejudice to its other rights, to
cancel or suspend the performance of the contract or any part thereof should
the Purchaser be in default of any of its obligations under the contract or
should there be any amounts due and unpaid by the Purchaser to the Seller
whether in respect of the Purchaser’s obligations under the contract or any
other contract.
(2) If the Seller is at any time unable to perform its obligations for any
circumstances beyond its control (as hereinafter mentioned) it shall be
entitled, on notice to the Purchaser given within a reasonable time, either to
terminate or suspend the contract or any part of it without incurring any
liability whatsoever to the Purchaser. Without limitation, circumstances beyond
the Seller’s control shall include war, civil commotion or insurrection,
strikes, lockouts or other labour or industrial disputes, legislation whether
by statute, regulation, instrument or order, earthquake, fire, flooding,
tempest or abnormal weather conditions, breakdown or interruption of or
disruption in supplied, plant, machinery or equipment or transport and all
other occurrences or circumstances which prevent, hinder or delay the Seller’s
performance of the contract.
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11. Proper Law
This contract shall be governed by and construed according to English law and
it is agreed for the exclusive benefit of the Seller that English courts shall
have jurisdiction to settle any disputed which may arise in connection with
this contract.
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| The descriptions, specifications, illustrations and prices
were correct at the time of inputting but are subject to alteration without
notice. |
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| E&OE. |
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© Beecroft & Partners Ltd 1987 - 2010 |
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