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TERMS AND CONDITIONS OF SALE - PRODUCTS _________________________
1. DEFINITIONS AND INTERPRETATION 1.1 In these terms and conditions of sale ("Conditions") the following words have the following meanings: "Buyer"
1.3 In these Conditions references to the singular include the plural and vice versa as the context admits or requires. 1.4 In these Conditions headings are for convenience only and will not affect the construction of these Conditions. 1.5 Unless specified otherwise, terms defined in the 2000 Edition of Incoterms shall have the same meaning when used in these Conditions.
2. APPLICATION OF TERMS 2.1 Subject to any variation under Condition 2.2, the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which Buyer purports to apply under any purchase order, confirmation of order, specification or other document). 2.2 These Conditions apply to all Seller's sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director or authorised representative of Seller. Acceptance of delivery of the Goods by Buyer shall be conclusive evidence of Buyer's acceptance of these Conditions. 2.3 Each order for Goods by Buyer shall be an offer by Buyer to purchase Goods subject to these Conditions. 2.4 No order placed by Buyer shall be accepted by Seller until a written acknowledgement of order is issued by Seller or (if earlier) Seller delivers the Goods to Buyer. 2.5 Buyer shall have the right to cancel any order within 14 days of the date of the order only if the cancellation is accepted in writing by Seller, provided that Buyer shall pay Seller on cancellation 50% of the purchase price of the Goods the subject of the cancellation order. 2.6 Buyer shall promptly supply all information and assistance required for Seller to execute Buyer's order. 2.7 All statements (whether written or oral), drawings, photographs, specifications and advertising issued by Seller and any descriptions or illustrations concerning the Goods made by or on behalf of Seller before contract, whether in catalogues, brochures, leaflets, price lists or otherwise, are for the purposes of information and guidance only, are of no contractual effect and by ordering Goods, Buyer accepts and confirms that Buyer has not relied on them. Unless and until orders are accepted by Seller on the basis of estimates or quotations, they shall not be binding upon Seller.
3. DELIVERY 3.1 Any dates specified by Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. 3.2 Delivery shall be made to the place(s) and by the method(s) specified on Seller's order confirmation. Buyer is responsible for unloading and Buyer's or its carrier's receipt shall be conclusive evidence of delivery. 3.3 Buyer shall take delivery of the Goods by any date quoted by Seller or requested by Buyer or (if none) within a reasonable time. Seller may extend delivery times by any period during which circumstances beyond Seller's control (as defined in clause 12) prevent Seller from performing its obligations. Seller may deliver earlier where reasonable. Buyer shall be responsible for all storage and other costs incurred by Seller or its agent relating to Buyer's failure to comply with the Contract. 3.4 Seller will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by Seller's negligence), nor will any delay entitle Buyer to terminate or rescind the Contract. 3.5 If for any reason Buyer will not accept delivery of any of the Goods when they are ready for delivery, or Seller is unable to deliver the Goods on time because Buyer has not provided appropriate instructions, documents, licences or authorisations: 3.5.1 risk in the Goods will pass to Buyer (including for loss or damage caused by Seller's negligence); 3.5.2 the Goods will be deemed to have been delivered; and 3.5.3 Seller may store the Goods until delivery whereupon Buyer will be liable for all related costs and expenses (including without limitation storage and insurance). 3.6 Packaging is included in the price and is not returnable unless otherwise stated on Seller's order confirmation. Any special packaging requirements will incur a non-refundable additional charge. Buyer shall comply with all applicable law and regulations and with any return, disposal or other requirements stated on Seller's order confirmation in relation to any packaging in or on which the Goods are supplied by Buyer, without prejudice to any statutory obligation to which Seller itself may be subject in relation to such packaging.
4. NON-DELIVERY 4.1 The quantity of any consignment of Goods as recorded by Seller upon despatch from Seller's place of business shall be conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. 4.2 Seller shall not be liable for any non-delivery of Goods (even if caused by Seller's negligence) unless written notice is given to Seller within seven (7) days of the date when the Goods would in the ordinary course of events have been received. 4.3 Subject always to Condition 4.2, any liability of Seller for non-delivery of Goods shall be limited to replacing Goods within a reasonable time or issuing a credit note at the pro rata Contract price against any invoice raised for such Goods.
5. RISK AND TITLE 5.1 Risk in the Goods shall pass to Buyer upon delivery or under Condition 3.6. 5.2 Ownership of the Goods (whether separate and identifiable or incorporated in or mixed with other goods) shall not pass to Buyer until Seller has received in full all sums due from Buyer. 5.3 Until ownership of the Goods has passed to Buyer, Buyer must:- 5.3.1 hold the Goods on a fiduciary basis as Seller's bailee; 5.3.2 store the Goods (at no cost to Seller) separately from all other goods in its possession in such a way that they remain readily identifiable as Seller's property; 5.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; 5.3.4 maintain the Goods in satisfactory condition insured on Seller's behalf for their full price against all risks to the reasonable satisfaction of Seller. On request Buyer shall produce the policy of insurance to Seller; and 5.3.5 hold the proceeds of the insurance referred to in Condition 5.3.4 on trust for Seller and not mix them with any other money or pay the proceeds into an overdrawn bank account. 5.4 Buyer may resell the Goods before ownership has passed to it solely on the following Conditions: 5.4.1 any sale shall be made in the ordinary course of Buyer's business; and 5.4.2 any such sale shall be a sale of Seller's property on Buyer's own behalf and Buyer shall deal as principal when making the sale. 5.5 Buyer's right to possession of the Goods shall terminate immediately if: 5.5.1 Seller enters into any compromise or arrangement with its creditors, commits any act of bankruptcy or if an order is made or an effective resolution is passed for its winding up (except for the purposes of amalgamation or reconstruction as a solvent company) or if a petition is presented to court, or if a receiver and/or manager, receiver, administrative receiver or administrator is appointed in respect of the whole or any part of Seller's undertaking or assets or suffers anything analogous under foreign law; 5.5.2 any distress, execution or other process is levied upon any of the assets of Seller; or 5.5.3 Buyer encumbers or in any way charges any of the Goods. 5.6 Buyer shall give notice to Seller immediately if any third party alleges to have rights concerning Goods supplied by Seller. Seller shall be entitled to remove these Goods from the Buyer and store them elsewhere, Buyer being liable for all costs involved. Re-delivery of the Goods will occur only after Seller has been paid any amount due in full or after adequate security has been given for Seller's claim. 5.7 Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Seller. 5.8 Buyer grants 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 Buyer's right to possession has terminated, to recover them.
6. PRICE 6.1 Unless otherwise agreed by Seller in writing the price for the Goods shall be the price set out in the confirmation order prepared by Seller and signed by Buyer. 6.2 Seller may increase the price initially agreed in accordance with any increase in levies (such as excise duties and other taxes) which were not known on the day the agreement was concluded. Such increases shall be paid by Buyer as part of the price. 6.3 All prices quoted are exclusive of VAT and any other duties. All sums due to Seller shall be paid in the currency and to the address stated on Seller's invoice. 6.4 If Seller arranges or undertakes the carriage, freight, insurance or any other transportation costs beyond the point of delivery, such costs shall be paid by Buyer in addition to the Contract price and shall not affect the provisions of the Contract as to the passing of risk.
7. PAYMENT 7.1 Payment of the price for the Goods is due in [pounds sterling] within 30 days from the date of the Seller's invoice. 7.2 If Buyer does not make payment in full of the price of the Goods or Seller has reasonable grounds to believe Buyer will not pay, Seller may request at any time before payment in full is made that Buyer shall provide to Seller such guarantee, letter of credit or other security requested by Seller in order to secure the payment of all amounts due or which may become due from Buyer to Seller. Should Buyer fail to provide such security Seller shall have the right to cancel the order and stop delivery of any Goods and Buyer shall thereupon pay Seller an amount equal to all losses and expenses incurred by Seller pursuant to Buyer's order for the relevant Goods. 7.3 Time for payment shall be of the essence. 7.4 All payments due to Seller under a Contract shall become due immediately upon termination of any Contract despite any other provision. 7.5 Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise. 7.6 Buyer shall pay to Seller, in addition to other amounts payable hereunder, any costs reasonably incurred by Seller (including without limitation, legal costs and fees of debt collection agencies) in recovering any amounts due to Seller from Buyer pursuant to the Contract. 7.7 If Buyer fails to pay Seller any sum due pursuant to the Contract then, without limiting any other right or remedy available to Seller:- 7.7.1 Seller may cancel the Contract in full or insofar as not yet performed. 7.7.2 Seller may suspend any further deliveries to Buyer including the production or tooling of goods to be delivered (once Buyer has met its obligations the delivery time will be that required for production or tooling, subject to the possibilities then available to Seller and/or Seller's suppliers). 7.7.3 Seller may demand advance payment or adequate security for payment or payment immediate on delivery. 7.7.4 Cancel one or more current purchase agreement, with respect to which Buyer is not in default, either in full or insofar not yet performed. 7.7.5 Buyer will be liable to pay interest to Seller on such sum from the due date for payment at the annual rate of 3% on the full amount above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made, whether before or after any judgement. Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. 7.8 Seller may appropriate sums received from Buyer against any debt due to Seller from Buyer (under this or any other Contract), irrespective of any purported appropriation by Buyer.
8. SELLER'S WARRANTY 8.1 Seller warrants that upon delivery:- 8.1.1 the Goods are sold with good title; and 8.1.2 in all material respects the Goods will comply with specification appearing on Seller's order confirmation and are made with sound materials and workmanship to normal standards accepted in the industry at the time of delivery ("Seller's Warranty"). 8.2 Seller does not warrant that the Goods are fit for any particular purpose or intended use by Buyer and it is for Buyer to satisfy itself that the Goods are so fit. 8.3 Seller shall not be liable for a breach of any of Seller's Warranty unless: 8.3.1 Buyer gives written notice of the defect to Seller and (if the defect is as a result of damage in transit) to the carrier within 8 days of the time when Buyer discovers or ought to have discovered the defect; and 8.3.2 Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if asked to do so by Seller) returns such Goods to Seller's place of business at Buyer's risk and cost for the examination to take place there, subject to prior approval in writing by Seller. 8.4 Seller shall not be liable for a breach of Seller's Warranty if: 8.4.1 Buyer makes any further use of such Goods after giving such notice (as specified in Condition 8.3.1); or 8.4.2 the defect arises because Buyer failed to follow Seller's instructions as to the storage, use or maintenance of the Goods; or 8.4.3 Buyer alters or repairs such Goods without the written consent of Seller; or 8.4.4 the defect arises because Seller followed any drawing, design or specification supplied by Buyer. 8.5 Subject to Conditions 8.3 and 8.4, if any of the Goods do not comply with Seller's Warranty, Seller shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract price provided that, if Seller so requests, Buyer shall, at Buyer's expense, return the Goods (or the part of such Goods) which are defective to Seller. 8.6 Subject to Condition 8.8, if Seller complies with Condition 8.5 it shall have no further liability for a breach of Seller's Warranty in respect of such Goods. 8.7 Condition 8.1.2 does not apply to seconds, remainder stock or samples or to Goods sold as obsolete or sub-standard. 8.8 Seller does not exclude any liability which cannot be excluded as between Buyer and Seller under any United Kingdom legislation. If the Goods are intended by Seller to be and are in fact resold by Buyer in the United Kingdom to individual(s) without further processing, testing or inspection, Seller will pay reasonable compensation to Buyer for any damages and costs finally awarded against Buyer in the United Kingdom under Part I of the Consumer Protection Act 1987 (the "CPA"), but only to the extent that Seller is itself liable under the CPA for the claim in question because the Goods were defective (within the meaning of the CPA) at the time of delivery by Seller. Seller shall not be liable to the extent that any liability arises from any default of Buyer (including but not limited to any failure by Buyer to ensure that the Goods are sold only for uses recommended by Seller) or where Buyer knew or ought reasonably to have known of the said defect. 8.9 It is a condition of Buyer's right of recovery under Condition 8.8 that Buyer shall notify Seller of any relevant claim within 48 hours, shall comply with Seller's reasonable requirements to minimise liability and/or avoid further liability, shall (where directed by Seller) take all reasonable steps to mitigate its loss and shall allow Seller conduct of any action and/or settlement negotiations.
9. INTELLECTUAL PROPERTY 9.1 Buyer shall indemnify Seller against any liability incurred by Seller:- 9.1.1 as a result of incorporating property of Buyer in the Goods or applying any trade mark or design to or in the products on Buyer's instructions, or complying with other instructions of Buyer, and 9.1.2 in respect of any third party claims arising from dealing by Buyer in the goods (irrespective of any negligence of Seller) except as provided in condition 8.8 or if arising from Seller's wilful default. 9.2 Seller shall promptly notify Buyer of any relevant claim, shall comply with Buyer's reasonable requirements to minimise liability and/or avoid further liability and shall allow Buyer conduct of any action and/or settlement negotiations on reasonable terms. 9.3 Buyer shall not use any trade marks or trade names applied to or used by Seller in relation to the Goods in any manner not approved by Seller.
10. LIMITATION OF LIABILITY 10.1 Subject to Condition 8, the following provisions set out the entire liability of Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Buyer in respect of: 10.1.1 any breach of the Contract; and/or 10.1.2 any misrepresentation, misstatement or tortious act or omission including negligence arising under or in connection with the Contract; and/or 10.1.3 the Goods howsoever arising whether in contract, tort, for breach of statutory duty or otherwise. 10.2 Except where expressly accepted in these Conditions, all warranties, conditions, representations, rights, obligations, liabilities and other terms whether express or implied by statute or common law in connection with the Goods (including without limitation any relating to condition, performance, satisfactory quality, fitness for purpose, conformity with description or sample, care and skill or compliance with representations, save for the condition implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract. 10.3 Nothing in these Conditions excludes or limits the liability of Seller for death or personal injury caused by Seller's negligence or for fraudulent misrepresentation. Buyer's attention is in particular drawn to the provisions of condition 10.4 10.4 Subject to conditions 10.2 and 10.3: 10.4.1 Seller's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising in connection with the performance or contemplated performance of this contract (including under indemnification provisions (if any)) shall be limited to the price paid for the Goods; 10.4.2 Seller shall not be liable to buyer in contract, tort (including negligence) misrepresentation or otherwise for loss of profit, loss of business or revenue, loss of anticipated savings, depletion of goodwill or any third party claims or any indirect or consequential loss or damage, which arise out of or in connection with the contract. 10.5 Without prejudice to Seller's Warranty, Buyer's sole remedy shall be in damages. 10.6 Without prejudice to condition 8.3, no action may be brought against Seller in connection with the goods or the contract unless proceedings are issued against Seller within two years after Buyer became or ought to have become aware of the circumstances giving rise thereto.
11. ASSIGNMENT 11.1 Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of Seller. 11.2 Seller may assign the Contract or any part of it to any person, firm or company.
12. FORCE MAJEUR 12.1 Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by Buyer (without liability to Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Seller including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce) or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of 180 days, Buyer shall be entitled to give notice in writing to Seller to terminate the Contract.
13. GENERAL 13.1 Each right or remedy of Seller under the Contract is without prejudice to any other right or remedy of Seller whether under the Contract or not. 13.2 If any provision of the Contract shall be held to be illegal, invalid or unenforceable in whole or in part, either under enactment or rule of law, such provision or part shall to that extent be deemed not to form part of this Contract but the legality, validity and enforceability of the remaining provisions of the Contract shall not be affected. 13.3 Notices must be in writing to Seller's or Buyer's address and shall be deemed delivered on the first working day after sending by hand or (subject to confirmation of transmission) by facsimile, or, within the UK, on the third working day after being placed prepaid in the first class post to Seller's or Buyer's address in the UK. 13.4 Failure or delay by Seller in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract. 13.5 Any waiver by Seller of any breach of, or any default under, any provision of the Contract by Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other conditions of the Contract. 13.6 No term or condition of this Contract is enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to the Contract and Seller and Buyer may exercise, without the consent of any third party, any rights they may have to amend or rescind this Contract. 13.7 This Contract shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English Courts. Seller may nevertheless bring claims in any other courts of competent jurisdiction. 13.8 [Dutch law shall apply to this contract and the parties irrevocably submit to the exclusive jurisdiction of the Dutch courts. All disputes arising between the parties in relation to the present contract and the performance thereof shall only be submitted to the competent district court in Haarlem.]
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