1. DEFINITIONS
1.1 ‘Buyer’ means the company, firm or person who buys or agrees to buy the goods from the Seller and whose name appears on this document.
1.2 ‘Conditions’ means the terms and conditions of sale set out in this document and any additional special terms and conditions agreed in writing by the Seller.
1.3 ‘Delivery Date’ means the date specified by the Seller when the goods are to be delivered.
1.4 ‘Goods’ means the articles which the Buyer agrees to buy from the Seller.
1.5 ‘Price’ means the price for the Goods excluding carriage, packing, insurance and VAT and any other duties payable.
1.6 ‘Seller’ means the company, firm or person whose name and address appears on this document overleaf identified as the ‘Seller’.
2. CONDITIONS OF SALE
2.1 These conditions shall apply to all agreements for the Sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms and conditions which the Buyer may purport to apply under any purchase order confirmation of order or similar document.
2.2 All orders for Goods by the Buyer will be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
2.3 Any telephone order or other order made by a Buyer without notice of these conditions shall be deemed to be an invitation to treat only and to be of no effect unless in accordance with the following provisions it becomes deemed to be an offer to purchase Goods by the Buyer pursuant to these Conditions. To become deemed to be an offer to purchase pursuant to these Conditions the Seller shall (at its option) confirm receipt of the telephone or other order by sending to the Buyer this document. The Buyer without notice shall thereafter be deemed to have made an offer to purchase Goods pursuant to these Conditions after the expiry of 7 days from its receipt of this document unless within 7 days of receipt of this document the Buyer withdraws the telephone or other order by sending notice of withdrawal to the Seller. The provisions as to Notice set out at Clause 13 shall apply to the operation of this sub-clause.
2.4 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyers acceptance of these Conditions.
2.5 This Document and these Conditions contain the entire agreement between the parties in respect of its subject matter and they supersede all previous Conditions. Terms and understandings that may have been agreed between the parties and any representations that either may have made and they may not be modified except by an instrument in writing signed by a duly authorised representative of the Seller and a representative of the Buyer.
3. QUOTATIONS
3.1 All price quotations given by the Seller are for the Buyers information only and represent the price as at the date of Quotation only. The Seller will endeavour (without being under any contractual obligation so to do) to hold Price Quotations given to the Buyer for the period of time stated on the Quotation. All prices quoted are exclusive of VAT and any other duties which may become payable. The price of carriage, packing and insurance where applicable will be shown as separate items to the price of the goods.
3.2 Prices and rates of VAT charged (and any other duties payable) will (save as above) be those current on the date of despatch to the Buyer notwithstanding that an Order from the Buyer has been accepted by the Seller.
4. PRICE AND PAYMENT
4.1 Payment of the Price and VAT (and any other duties payable) shall be due strictly thirty days after the date on the invoice unless pro-forma payment has been requested by the Seller. The seller reserves the right to ask the Buyer for pro-forma payment. Time for payment shall be of the essence.
4.2 Interest on overdue invoices shall accrue from the date when payment becomes due and continue on a compound basis with annual rests from day to day until the date of payment at a rate of 4% per annum above the base rate of Barclays Bank PLC from time to time in force and shall accrue at such a rate before and after judgement.
5. DELIVERY
5.1 Delivery dates are approximate and while every effort shall be made to maintain delivery dates the Seller accepts no liability for delay howsoever occasioned or for the consequences of delay.
5.2 Should the Seller be prevented from delivery at the agreed date or dates as shown overleaf by act of God, war, fire,tempest,flood,accident or damage to the Goods or by strikes,lock-outs,delay or inability to obtain raw materials or for any other cause beyond the Seller’s control it may suspend delivery until a reasonable time after the end of the event so preventing or delaying delivery and during such period as is reasonable for normal production and sales by the Seller to re-commence or it may cancel the agreement without compensation being due from the Seller to the Buyer.
5.3 Should the Buyer fail to supply components and/or instructions required for the manufacture or finishing of the goods which it has agreed to supply by the date shown overleaf the Seller may suspend delivery until a reasonable time after the supply by the Buyer of the components and/or instructions or it may cancel the agreement without compensation being due from the Seller to the Buyer.
5.4 Unless otherwise provided in this document delivery shall be made by the Seller to the Buyer at the delivery address for the Buyer shown overleaf. Where the agreement provides for a single delivery ex the Seller’s premises without specifying a date Goods shall be deemed to be delivered within 14 days of the Buyer being notified by the Seller that the goods are ready for collection from the Seller’s premises and Goods shall be deemed to have been accepted by the Buyer in accordance with Clause 9.1 hereof 7 days thereafter.
5.5 Where the agreement provides for deferred deliveries all the deliveries shall be deemed to have taken place and to have been accepted by the Buyer within one month of the specified first delivery or availability date as shown on the Schedule referred to overleaf.
5.6 In the event of failure by the Buyer to collect Goods in accordance with its obligations under 5.4 or 5.5 above delivery shall be deemed to have occurred on the date notified to the Buyer and the Goods shall be deemed to have occurred on the date notified to the Buyer and the Goods shall be deemed to have been accepted by the Buyer 7 days later or after one month (whichever shall be applicable) and thereafter storage costs on a quantum meruit basis may be charged by the Seller to the Buyers account, (such storage being at the Buyers sole risk).
5.7 Each delivery shall constitute a separate contract and any failure or defect in any one delivery shall not vitiate the agreement as in the remaining deliveries.
6. TOLERANCES AND QUANTITY VARIATIONS
6.1 Any shortage or surplus not exceeding 10 will be charged or credited pro-rata and notwithstanding any such shortage or surplus within the said tolerance will be considered due execution of the agreement except as otherwise specifically agreed in writing by the duly authorised representative of the Seller and the representative of the Buyer.
6.2 The Seller will endeavour to supply Goods in accordance with the quantity of samples submitted or quote for but the agreement shall not be a contract for sale by sample.
7. CUSTOMER REQUIREMENTS, PRINTING AND CONSTRUCTION
7.1 All sketches and origination work shall be and remain the property of the Seller unless supplied by the Buyer.
7.2 Should alterations from original copy on and after the first proof including alterations in construction be required by the Buyer then the Seller shall be entitled to charge an additional amount by way of quantum meruit.
7.3 The Seller reserves the right to submit all proofs for the Buyers approval. The Seller shall not be liable for any errors in the Goods which were contained in proofs submitted by the Seller for the Buyer’s approval and in respect of which the Buyer in its turn failed to notify the Seller of the required correction.
7.4 The buyer shall be solely responsible for any matter which the Seller prints on the Goods on the instructions of or at the request of the Buyer and for any design or construction which the Seller executes on the instructions of or at the request of the Buyer whether the same shalt have been supplied by the Seller or the Buyer and the Buyer shall be solely responsible for and shall indemnify the Seller for any claim or proceedings brought by a third party arising therefrom.
8. MACHINE READABLE CODES
8.1 In the case of machine readable codes or symbols the Seller shall print the same at specified or approved by the Buyer in accordance with the generally accepted standards and procedures of the trade.
8.2 The Buyer shall be responsible for satisfying himself that the code or symbol will read correctly on equipment likely to be used by those for whom the code or symbol is intended.
8.3 The Buyer shall indemnify the Seller against any claim by any party resulting from the code or symbol not reading or not reading correctly for any reason, except to the extent that such claim arises from any failure of the Seller to comply with clause 8.1 above which is not attributable to error falling within the tolerances generally accepted in the trade in relation to printing of this nature.
9. LIABILITY, CLAIMS AND INSPECTION
9.1 The Buyer shall inspect the Goods on delivery and shall within 3 days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with description or sample or other specification as may have been agreed. If Goods are damaged during transit, the Seller and or carrier shall not be liable unless a carrier’s delivery advice or similar document has been signed for as damaged by a representative of the Buyer. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery and before any use is made of them. If the Buyer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the agreement and free from any defect or damage which would be apparent on a reasonable examination of the Goods and the Buyer shall be deemed to have accepted the Goods 3 days after the date of delivery.
9.2 The Buyer shall notify the Seller of any non-delivery of a whole consignment of Goods within 14 days of the date of despatch (as stated on the invoice). Notwithstanding the receipt by the Seller of any notice pursuant to clause 9.1 or this sub-clause a clear signature by a representative of the Buyer on a carriers delivery advice or similar document shall be deemed to signify receipt of the quantity of Goods indicated on the advice sheet or other document as aforesaid.
9.3 In the event of the Goods supplied by the Seller not complying with the express terms of the agreement of proving to be defective quality the Sellers liability shall (except in respect of the case of personal injury or death caused by the negligence of the Seller) be limited to refunding that part of the purchase price which relates to the defective items.
9.4 The Seller hereby excludes any liability for any loss or damage or consequential loss or damage howsoever caused whether arising from a breach of this agreement, or from any duty of care owed by the Seller to the Buyer or in respect of any representation made in connection with or inducing the agreement or otherwise (except in respect of the case of person injury or death caused by the negligence of the Seller) save for a refund of the purchase price as aforesaid.
9.5 All conditions or warranties whether express or implied by statute or otherwise are hereby excluded insofar as they are inconsistent with these terms.
10. TITLE AND RISK
10.1 Property in any Goods supplied by the Seller to the Buyer shall remain vested in the Seller until payment (namely the receipt by the Seller of cash or cleared funds) for all Goods so supplied has been made by the Buyer to the Seller in full or until such time as the Buyer shall have sold such Goods in accordance with condition 10.4 hereof.
10.2 Notwithstanding that the property in the Goods may remain vested in the Seller as aforesaid the risk shall pass from the Seller to the Buyer when the Goods are delivered or deemed to be delivered to the Buyer and the Seller shall be entitled to recover from the Buyer the price and all sums due under this agreement.
10.3 Until 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 and apart from those of the Buyer and third parties and properly stored, protected and insured with a reputable insurance company (at the Buyers expense) and identified as the seller’s property. The insurance shall cover the Seller’s interest in the goods and provide cover for the Goods at their full sale price against risk of fire, explosion, water damage and other usual perils. The Buyer shall hold in a separate Bank Account all monies paid under such insurance in trust for the Seller and shall pay the same to the Seller on demand.
10.4 Notwithstanding that the title to the Goods has not passed to the Buyer, the Buyer shall be entitled to re-sell (subject to the further provisions of this clause) the Goods in the ordinary course of its business but in so doing the Buyer shall not act as the Sellers agent but as principal only. The Buyer shall only be entitled to sell the Goods to a bona fide purchaser at a normal commercial price and the proceeds of sale shall be held by the Buyer in a separate Bank Account on trust to pay to the Seller all monies due from the Buyer to the Seller in respect thereof and the Buyer shall pay the same to the Seller on demand.
10.5 Notwithstanding that the title to the Goods has not passed to the Buyer, the Buyer shall be entitled to use (subject to further provisions of this clause) the Goods in the ordinary course of its business. Title to Goods supplied by the Seller to the Buyer, shall remain vested in the Seller notwithstanding their use or adaption by the Buyer or any third party. If such goods are admixed or united or incorporated with Goods belonging to the Buyer the product thereof shall be the property of the Seller. If goods so supplied are admixed or united or incorporated with Goods belonging to any person or persons other than the Buyer the product thereof shall be the property of the Seller in common with such other person or persons in the proportion of the value of the constituent parts.
10.6 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been re-sold) the Seller shall be entitled at any time to require the Buyer to deliver up the goods to the Seller and if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer where the Goods are stored and repossess the Goods. By entering into this agreement the Buyer shall be deemed to have granted to the Seller a licence to enter onto any of its premises where the Goods are stored or where the Seller may reasonably believe the Goods to be stored and the said licence shall be irrevocable at any time during which payment in full of the price of the Goods and other Goods agreed to be sold by the Seller to the Buyer remains outstanding.
10.7 Where Goods are supplied by the Seller to the Buyer under a number of separate invoices the following additional provisions shall apply.
a) the Buyer shall be presumed to re-sell Goods for which it has made payment to the Seller :
and
b) where the Buyer mixes Goods for which payment has been made to the Seller with identical Goods for which payment has not been made, the Seller shall be entitled to nominate any items of the mixed Goods as being items for which payment has not been made to it, up to the limit of the total number of such items whereupon the nominated items shall be conclusively presumed to be items in respect of which payment has not been made and in which title remains vested in the Seller.
10.8 Each part of clause 10 and each of its sub-clauses shall be severable from the remaining parts of the clause. If any provision of this clause is held by any Court or other competent authority to be void or unenforceable in whole or in part this clause shall continue to be valid as to the other provision hereof and the remainder of the affected provision.
11. INSOLVENCY OR OTHER DEFAUL OF BUYER
11.1 If the buyer fails to make payment for the Goods in accordance with this agreement or commits any other break of this agreement or if any distress or execution shall be levied upon of the Buyer’s Goods or if the Buyer offers any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a Limited Company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation without insolvency) shall be passed or presented or if a receiver, administrator, administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign law all sums outstanding in respect of the Goods shall become payable immediately. The Seller may in its absolute discretion and without prejudice to any other rights which it may have suspend all future deliveries of Goods to the Buyer and/or terminate the agreement without liability upon its part and/or exercise any of its rights pursuant to Clause 10.
12. FORCE MAJEURE
12.1 The performance of this agreement is subject to variation or cancellation by the Seller without notice owing to any Act of God, war, strikes, lock-outs, fire, flood, drought, tempest or any other cause beyond the control of the Seller or owing to any inability of the Seller to procure materials or articles required for the performances of the agreement and the Seller shall not be held responsible for any inability to deliver caused by any such contingency.
13. NOTICES
13.1 Any Notice required to be given by either party or any Account rendered by the Seller to the Buyer shall be deemed to have been given or rendered if despatched by first class post and addressed to the Buyer or the Seller as the case may be at the address of each shown overleaf or to their respective last known business address or registered office and any such Notice or Account rendered shall be deemed to have been received 3 working days after posting as aforesaid.
13.2 In the alternative to the matters at 13.1 above any Notice required to be given by either party or any account rendered by the Seller to the Buyer shall be deemed to have been given or rendered if sent by facsimile transmission machine to the Buyer or the Seller as the case may be at the facsimile number shown overleaf for each or to the facsimile number at the respective last known business address or registered office and any such Notice or Account rendered shall be deemed to have been received if a facsimile transmission confirmation produced by such machine shows due and proper transmission.
14. INTERPRETATION
14.1 All heading in this document are inserted for convenience and ease of reference only and shall not affect the construction or interpretation of this agreement.
14.2 Any provision of this agreement which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision of this agreement.
14.3 No waiver or forbearance by the Seller whether express or implied in enforcing any of its rights under the agreement shall prejudice its right to do so in the future.
14.4 Save as otherwise provided in these Conditions nothing in these Conditions shall create any partnership joint venture or relationship of principal and agent between the parties.
14.5 Except where expressly provided for in these Conditions time shall not be of the essence of the agreement.
15. ARBITRATION
15.1 PROVIDED ALWAYS that in case any dispute or difference shall arise between the Seller and the Buyer as to (a) the construction of this agreement or (b) as to any matter or thing of whatsoever nature arising thereunder or in connection therewith then either the Seller or the Buyer shall give written notice to the other so such effect and such dispute or difference shall be and is hereby referred to the arbitration and final decision to such effect and such dispute or difference shall be and is hereby referred to the arbitration and final decision of a person to be agreed between the parties or in default of such agreement within 21 days after either party has given to the other written notice requesting concurrence in such appointment to such person as shall be appointed by the President for the time being of the Chartered Institute of Arbitrators.
16. GOVERNING LAW
16.1 This agreement is subject to the law of England and Wales.