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1. Interpretation |
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1.1 In these Conditions: |
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"SELLER" means V.A. Whitley & Company Limited whose registered
office is situated at Milward House, Fir Street, Heywood, Lancs. OL10 1NW.
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"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. |
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"GOODS" means the Goods (including any instalment of the Goods
or any parts of them) which the Seller is to supply in accordance with these
Conditions. |
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"CONDITIONS" means the standard terms and conditions of sale
set out in this document and includes any special terms and conditions agreed
in writing between the Buyer and the Seller. |
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"CONTRACT" means the Contract for the purchase and sale of
the Goods. |
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"WRITING" includes telex, cable, facsimile transmission and
comparable means of communication. |
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2. Basis of the sale |
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2.1 The Seller shall sell and the Buyer shall purchase the
Goods in accordance with any quotation of the Seller which is accepted by
the Buyer, or any 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 accepted, or any such order is made or purported
to be made, by the Buyer. |
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2.2 No variation to these Conditions shall be binding unless
agreed in Writing between the authorised representatives of the Buyer and
the Seller. |
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2.3 The Seller's employees or agents are not authorised 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. |
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2.4 Any 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. |
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3. Orders and specifications |
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3.1 The Buyer shall be responsible to the Seller for ensuring
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. |
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3.2 The 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). |
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3.3 If 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, cost 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 for infringement of any patent, copyright, design, trade mark
or other industrial or intellectual property rights of any other person
which results from the Seller's use of the Buyer's specification. |
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3.4 No order which has been accepted by the Seller may be
cancelled by the Buyer except with the agreement in Writing of the Seller
and on terms that 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 cancellation. |
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4. Price of the goods |
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4.1 The price of the Goods shall be the Seller's quoted price.
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4.2 The 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 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. |
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4.3 The price is exclusive of any applicable value added tax,
which the Buyer shall be additionally liable to pay to the Seller. |
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5. Terms of payment |
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5.1 Subject to any special terms agreed between the Buyer
and the Seller the Buyer shall pay cash for the price of the Goods delivered
by the Seller. |
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5.2 If special terms are agreed between the Buyer and the
Seller other than cash on delivery then the due date(s) for payment shall
be the date(s) agreed between the Buyer and the Seller. The time of payment
of the price of the Goods shall be of the essence of the Contract. Receipts
for payment shall be issued upon request. |
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5.3 If the Buyer fails to make full payment on the due date(s)
then without prejudice to any other right or remedy available to the Seller,
the Seller shall be entitled to: |
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5.3. 1 cancel the Contract or suspend any further deliveries
to the Buyer under the Contract; |
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5.3. 2 appropriate any payment made by the Buyer to such of
the Goods (or the goods supplied under any other contract between the Buyer
and the Seller) as the Seller may think fit (notwithstanding any purported
appropriation by the Buyer); |
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5.3. 3 charge the Buyer interest (both before and after any
judgment) on the amount unpaid, at the rate of 4 per cent per annum above
Barclays Bank PLC bank base rate from time to time, calculated on a daily
basis until payment in full is made; |
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5.3. 4 charge a reasonable administrative fee (being not
less then £10.00) in respect of all returned or represented cheques; |
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5.3. 5 (in respect of all contracts existing between the Buyer
and the Seller at the date of such failure) demand immediate payment of
all outstanding balances from the Buyer whether due or not and/or cancel
all outstanding orders and/or decline to make further deliveries except
upon receipt of cash or satisfactory security. |
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6. Delivery |
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6.1 Delivery of the Goods shall be made by the Buyer collecting
the Goods at the Seller's 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, delivering the Goods to that place.
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6.2 Any 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 unless
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. |
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6.3 Where the Goods are to be delivered in instalments, each
delivery shall constitute a separate contract and failure by the Seller
to deliver any one or more of the instalments in accordance with these Conditions
or any claim by the Buyer in respect of any one or more instalments shall
not entitle the Buyer to treat the Contract as a whole as repudiated. |
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6.4 If 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. |
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6.5 If the Buyer fails to take delivery of the Goods or fail
s to give the Seller adequate delivery instructions at the time stated for
delivery (otherwise than by reason of the Seller's fault) then, without
prejudice to any other right or remedy available to the Seller, the Seller
may: |
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6.5. 1 store the Goods until actual delivery and charge the
Buyer for the reasonable costs (including insurance) of storage; or |
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6.5. 2 sell 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. |
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7. Risk and property |
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7.1 Risk of damage to or loss of the Goods shall pass to the
Buyer: |
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7.1. 1 in the case of 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 |
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7.1. 2 in 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. |
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7.2 Notwithstanding 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 all other goods agreed
to be sold by the Seller to the Buyer for which payment is then due. |
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7.3 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 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 course of its business, but shall
account to the Seller for the proceeds of sale or otherwise of the Goods,
whether tangible or intangible, including insurance proceeds, 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. |
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7.4 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
resold), 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 or any third party where the Goods
are stored and repossess the Goods. |
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7.5 The 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. |
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8. Warranties and liability |
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8.1 Subject 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. |
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8.2 Any claim by the Buyer which is based on any defect in
the quantity 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 3 days from the date of delivery. 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. |
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8.3 Where 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
the part in question) free of charge or, at the Seller's own discretion,
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. |
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8.4 Except 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. |
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8.5 The Seller shall not be liable to the Buyer or be 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: |
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8.5. 1 Act of God, explosion, flood, tempest, fire or accident;
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8.5. 2 acts, restrictions, regulations, bye-laws, prohibitions
or measures of any kind on the part of any governmental, parliamentary or
local authority; |
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8.5. 3 strikes, lock-outs or other industrial actions or trade
disputes (whether involving employees of the Seller or of a third party);
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8.5. 4 difficulties in obtaining raw materials, labour, fuel,
parts or machinery; |
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8.5. 5 power failure or breakdown in machinery. |
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9. Insolvency of Buyer |
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9.1 This clause applies if: |
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9.1. 1 the 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 purposes of amalgamation or reconstruction): or |
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9.1. 2 an encumbrancer takes possession, or a receiver is
appointed, of any of the property or assets of the Buyer; or |
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9.1. 3 the Buyer ceases, or threatens to cease, to carry on
business; or |
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9.1. 4 the Seller reasonably apprehends that any of the events
mentioned above is about to occur in relation to the Buyer and notifies
the Buyer accordingly. |
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9.2 If 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. |
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10. General |
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10.1 No 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. |
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10.2 If any provision 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. |
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10.3 The Contract shall be governed by the laws of England.
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