CONDITIONS OF CONTRACT1) Any contract formed by the Seller’s acceptance of an order from the Buyer (“contract” for the supply by the Seller of goods (“goods”)shall be governed by these conditions to the exclusion of any other terms including those appearing or referred to in the Buyer’s order. Any delivery date specified in this contract shall be the date on which the Seller endeavours to have the goods ready for delivery. Any delivery date specified by the Seller is a genuine forecast in the light if current conditions but is given without legal commitment and the Seller accepts no responsibility if the Seller is unable to meet it.
2) (a) When the Buyer is to supply any particulars or instructions or to do any act before the Seller can proceed with or complete the contract such particulars or instructions shall be furnished or such act shall be done within a reasonable time to enable the Seller to deliver the goods in accordance with this contract.
(b) If the Buyer is to provide its own packaging he shall send it ‘Carriage paid` to the Seller’s designated Works in the quantities and at the time specified by the Seller.
3) The Seller will endeavour to supply the exact quantity of goods ordered but unless otherwise specifically agreed such quantities shall be subject to availability and the Buyer will pay for the actual quantity of goods actually delivered provided always that the quantity of goods actually delivered shall materially conform with the Buyers order.
4) The weights and/or quantities of any consignment of goods under this contract as ascertained by the Seller upon despatch form the Sellers works shall be accepted by the Buyer on delivery provided always that such weights and/or quantities materially conform with the Buyer’s order unless any specific error in the Seller’s ascertained weight or measurement or any loss in course of transit be proved by the Buyer by positive evidence.
5) (a) If events beyond the Seller’s reasonable control including war, Act of God, strike, lockout, fire, storm, tempest, breakdown, shortage of raw materials, security of labour, Government actions, civil communication, stoppage of machinery from any causes or other circumstances beyond the reasonable control of the Seller, prevent the Seller form delivering any of the goods or complying with any other term of this contract such obligation shall be postponed for a reasonable period. Beyond such period the Seller may without liability cancel this contract as regards such goods or the Buyer may without liability cancel this contract as regards such goods unless the goods either have been or are in the course of being made or have been appropriated by the Seller to this contract.
(b)If by any reason of any such circumstances the Seller is prevented form supplying the Buyer with full quantity of the goods deliverable under this contract and also at the same time maintaining in full its other business then the Seller shall be at liberty to withhold, reduce or suspend deliveries to the Buyer to such extent as the Seller shall consider reasonable and equitable in all the circumstances
6) The Seller reserves the right to levy a 20% penalty charge on cancelled orders were a minimum 2 months’ notice is not given by the Buyer; based on the value of cancelled order.
7) If this contract provides for delivery by instalments, no claim in respect or cancellation of any such instalment shall affect the remainder of this contract, each instalment being deemed to be a separate contract to which all terms and conditions hereof shall apply, provided that this condition shall in no way affect the Seller’s rights under conditions 14(b) or 21 to suspend or terminate this contract in the circumstances there mentioned.
8) Unless otherwise agreed in writing, the goods shall be delivered duty unpaid (DDU). If, at the request of the Buyer the goods are insured against any risk not ordinarily insured against by the Seller, the Seller will have the right to charge the Buyer with the premiums paid by the Seller for such additional insurance.
9) Any price stated in the Seller’s price lists is subjected to change and the actual price(s) to be paid for the goods may be the Sellers higher current price(s) ruling at the time when the goods are despatched from the Seller’s works, whether or not the time be that stated in this contract; provided that the Seller not later than 14 days before the proposed despatch of the goods has given notice in writing of any increase in price to the Buyer who shall be entitled for a period of 14 days after the despatch of such notice by the Seller to its agents to cancel by counter-notice given to the Seller in writing any undelivered balance of this contract which at the date of receipt of the said counter-notice is not prepared or in the course of preparation.
10) If this contract is entered into at a price in any currency other than English sterling and any decline in the value of such currency as compared with English sterling takes place between when this contract is made and the date or dates upon which payment hereunder are due and where this decline results in an exchange loss of more than 3%, the Buyer shall pay to the Seller an additional amount equal to the whole of the exchange loss which would otherwise be suffered by the Seller by reason of such decline.
11) A handling and carriage charge of £5.00 in the UK and €10 for the rest of Europe will be added to all orders of less than 10 units (Across all brands).
12) (a) the risk in the goods shall pass to the Buyer when the Seller delivers the goods in accordance with the items hereof to the Buyer or its agent or other person whom the Seller has been authorised by the Buyer to deliver the goods and the Seller shall have no responsibility in the respect of the safety of the goods thereafter and accordingly the Buyer should insure the goods thereafter against such risks (if any) as it thinks appropriate.
(b) No Legal property in, or beneficial ownership of, the goods supplied to the Buyer under any contract the Buyer may have with the Seller shall pass from the Seller to the Buyer unless and until the Buyer has made full and complete payment to the Seller of (i) all sums due from the Buyer to the Seller in respect of such goods, and (ii) all other amounts due from the Buyer to the Seller on any account whatsoever. We reserve the right to dispose of the goods until payment in full for all the goods has been received by us in accordance with the terms of this contract or until such time as you sell the goods to your customer by way of a bona fide sale at full market value. If such payment is overdue in whole or part we may (without prejudice to any other right of ours) recover or resell the goods or any of them and may enter upon your premises by our servants or agents for that purpose. Such payment shall become due immediately upon the commencement of any act or proceeding in which your solvency is involved.
(c) For the purpose of this contract time of payment by the Buyer shall be of the essence.
13) Term of Payment
(a) Invoices are due for payment 30 days from invoice date
(b) A deduction of 2 ½ % may be effected for payment in accordance with paragraphs (a) and (b) hereof except in respect of freight, duty and tax charges.
(c) Where discount is granted in accordance with the above or the payment terms set out on the Seller’s confirmation of credit account facility letter (“credit confirmation”) such discount will only be allowed upon payment being made within the time specified in this contract and payment within that time is a condition precedent to the allowance of such discount.
14) (a) The Seller shall be entitled to charge interest (both before and after judgement) at the rate of 2% per month on all overdue payments. This condition shall not operate so as to prevent or delay proceedings for the recovery of any account due and shall not interfere with any other right the Seller may have.
(b) If any sum due to the Seller under this or any other contract between the Buyer and the Seller whether or not for like or similar goods in arrear for fourteen days, the Seller shall have the right to suspend further deliveries under this contract until payment is made or to cancel this and/or any other contract between the Buyer and the Seller.
(c)The Seller shall have the right to suspend deliveries under this and/or any other contract the Seller may have with the Buyer (even though the Buyer is not in arrear with payment) if the Seller considers the amount outstanding in the account of the Buyer (whether actually due for payment or not) has reached the limit to which the Seller is prepared to allow credit to the Buyer, whether or not notified by the Buyer.
(d) The Buyer shall fully indemnify the Seller against any costs, claims or expenses (including legal costs and the costs of payment collection agents on an indemnity basis) arising in respect of any action taken by the Seller against the Buyer for late or non-payment of any sum due under this contract.
15) The Buyer Undertakes:
(a) Not to use in relation to the goods of the Sellers registered trademarks or any other trade mark applied by the Seller to the goods if the goods have been or are to be processed, treated or used in any manner of which the Seller has not approved in writing; and
(b) To ensure that the stipulation contained in paragraph (a) of this condition is specifically advised to the Buyer’s customers of the goods and to contain corresponding undertakings from such customers.
16) (a) The Seller warrants that, save as otherwise herein specifically provided the goods will on delivery in all material respects accord with the contract specification (if any) and will be of sound materials and workmanship.
(b) Where the Seller has specifically so agreed in writing, the Seller further warrants that the goods will on delivery be fit for the purpose which the Buyer specified but where the Seller has not so agreed, the Buyer will be responsible for ensuring that the goods are fit the Buyer’s intended use and shall in any event test the goods for quality and suitability before taking them into use.
(c) Subject as provided in these conditions all terms implied by law are excluded to the fullest extent permitted.
17) (a) The Seller’s liability in respect of goods proved by the Buyer to be defective is limited to giving the Buyer a reasonable credit or allowance in respect of the defective goods, or, at the Seller’s option to replacing at the point of delivery specified in the Buyer’s order such defective goods (if delivery address is within the United Kingdom any replacement of defective goods may be at that address or at any other address in the United Kingdom as the Buyer and Seller shall mutually agree); but in no circumstances will the Seller’s maximum liability hereunder or for its negligence or other tort exceed the invoice value of the defective goods sold hereunder. Nothing in these conditions is intended to restrict the Sellers liability for death or personal injury resulting from its negligence.
(b) The Seller shall not be liable under this contract or common law duty for:
(i) Adverse effects resulting from the application to the goods of any process, operation or treatment not recommended in writing by the Seller;
(ii) Any expenditure incurred by the Buyer in respect of goods proved or alleged to be defective;
(iii) Loss of profit or consequential, indirect or special loss or damage of any kind to the Buyer howsoever caused;
(iv) Any goods which have been processed in any way by the Buyer or damaged after the risk in goods have passed to the Buyer;
(v) Defects in the goods arising from any drawing, design, specification or information provided by the Buyer or from fair wear and tear; or
(vi) Any failure by the Buyer to follow the Seller’s instructions or recommendations in connection with the use of any goods.
(c) Claims for loss or damage in transit will only be considered if made so as to reach the Seller within such period as will enable a valid claim to be made against the carrier.
(d) Claims in respect of goods delivered but alleged to be defective must be made in writing to the Seller within 14 days after delivery or where the defect was not apparent n reasonable inspection, within a reasonable time after discovery of the defect provided that the Buyer notifies the Seller of such defect within 1 month of delivery.
(e) No liability in respect of goods undelivered, lost, pilfered or damaged in transit will be accepted by the Seller where ownership of the goods has passed to the Buyer before that occurrence or where the carrier has been given a clear receipt for the goods.
(f) The Seller reserves the right to impose a handling charge on returned stock which the Seller does not consider to be defective up to a maximum of 20% of the value of the stock returned.
(g) The goods may only be returned to the Seller under this condition 17 agreed by the Seller, and the latter’s certificate as to the quantity of returned goods received by it shall be final and binding.
(h) In the event of the Buyer’s failure to give the Seller notice as specified in paragraphs (c) or (d) of this condition (as appropriate) the Buyer’s claim shall be deemed to have been waived and shall be absolutely barred.
18) The terms for payment shall be as set out in paragraph 13 or if varied, as set out in the credit confirmation letter. The Buyer shall not be entitled to withhold, deduct from or set off payment for goods delivered for any reason whatsoever.
19) In case of any inconsistency between the terms of sale as set out in this contract and the terms of purchase in any form of contract sent by the Buyer to the Seller the terms and conditions of this contract shall prevail. This contract contains the entire bargain in respect of the supply of goods between the Buyer and the Seller and supersedes all prior arrangements and representations (other than fraudulent representations) and can be varied only in writing signed by the party accepting the variation.
20) Unless otherwise specifically agreed in writing, the Seller gives no undertaking that when the goods are contained or supplied in containers such as containers are fit to withstand transport to any place other than the place of delivery under this contract.
21) If The Buyer:
(a) Makes default in or commits any breach of its obligations to the Seller hereunder,
(b) Makes a voluntary arrangement with its creditors, (being an individual or firm) becomes bankrupt, (being a company) becomes subject to an administration order or goes into liquidation (other than by way of amalgamation or reconstruction) or has an encumbrance take possession or a receiver appointed over all or any part of its undertaking.
(c) Ceases or threatens to cease to trade or,
(d) If the Seller reasonably believes that any of the above events is to occur; then in any such case the price of any goods delivered but unpaid for shall become due and payable and the Seller shall immediately become entitled (without prejudice to its other claims and rights under this contract) to suspend further performance of this contract for such time not exceeding six months as it shall in its absolute discretion think fit or (whether or not notice of such suspension shall be given) to treat this contract as wrongfully repudiated by the Buyer and forthwith terminate this contract. The Seller will notify the Buyer of the exercise of its option to suspend or terminate this contract within a reasonable time of its becoming aware of the act or default on the Buyers part giving rise to the Seller’s rights under this condition.
22) (a) This contract shall be interpreted exclusively according to the law of England and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts in connection with any dispute arising in connection with this contract.
(b) No waiver by the Seller of any breach of this contract by the Buyer is considered as a waiver of any subsequent breach of the same or any other provision. Notices required or permitted to be required under these conditions must be in writing addressed to the relevant party at its registered office or principal place of business. If any provision of these conditions or part of the same is held by a competent authority to be invalid or unenforceable in whole or in part of the validity of the other provisions of these conditions and the remainder of the provision in question is not affected. The Seller may freely assign or sub-contract the whole or any part of this contract