GENERAL
1. (a) These conditions apply to all sales of goods by Pro-Products ("the Seller") and shall prevail over any other terms or conditions contained or referred to in the Buyer's order or in correspondence or elsewhere or implied by trade custom, practise or course of dealing unless such other terms or conditions are specifically agreed to in writing by the Seller. The Seller's agents shall not have authority to enlarge, vary or exclude any of these conditions. Any purported enlargement, variation or exclusion thereof shall be without effect unless specifically agreed to in writing by the Seller and the Buyer.
(b) The headings appearing above each condition are included for reference purposes only and shall not effect or limit the interpretation and effect of these conditions.
QUOTATIONS
2. A quotation by the Seller shall constitute an initiation to treat and not an offer. The Seller may withdraw or amend any quotation at any time prior to the Seller's acceptance of the Buyer's order. Quotations will remain valid for three months or withdraw whichever shall be the earliest.
SPECIFICATIONS AND DESIGNS
3. Unless otherwise agreed by the Seller in writing, the Seller reserves the right to alter specifications and designs without notice.
ESTIMATES OF QUANTITIES AND ADVICE AS TO FITNESS FOR PURPOSE
4. Any estimate in respect of quantities needed or advice as to the suitability or fitness of any goods for any particular purpose given by the Seller or its servants or agents will be treated as without obligation or responsibility on the part of the Seller and the Buyer will be entirely responsible for ascertaining the quantities required and the suitability and fitness of the goods for their purpose.
PRICE
5. (a) All prices shall be deemed to be exclusive of (i) Value Added Tax which shall be payable in addition by the Buyer at the rate prevailing at the tax point and (ii) the cost of packaging and of carriage from the Seller's works which were requested by the Buyer shall be payable in addition by the Buyer.
(b) The Seller shall have the right at any time and without notice to revise the price for the goods sold to take account of increases in costs including (without limitation) costs of any goods or materials carriage labour or overheads the increase or imposition of any tax duty or other levy and any variation in exchange rate since the date of acceptance of the order.
TERMS OF PAYMENT
6. (a) Credit accounts may be opened, subject to satisfactory credit references being obtained, in the Seller's sole discretion. Payment for goods supplied on a credit account shall become due and payable not later than 30 days after the date of invoicing the goods (inclusive of the date of invoice). In the event of there being any default by the Buyer in making payment as aforesaid the entire balance of the said account shall be payable forthwith and the Seller shall be entitled to change interest thereon in accordance with sub-clause (d) hereof.
(b) For all other transactions quotations shall be for cash with order. If cash is not paid with the order, the Seller shall have the right to require cash on delivery.
(c) The Buyer shall not be entitled to withhold or set off payment of any amount due to the Seller under the terms hereof whether in respect of any claim by the Buyer in respect of goods supplied by the Seller or for any other reason which is contested or for which liability is not admitted by the Seller.
(d) Without prejudice to the Seller's right to enforce payment, if the Buyer fails to make payment as here in before provided the Seller shall be entitled to charge interest on any balance outstanding from the date the same became due for payment until payment is made at the rate of 2.5% per annum above The Seller's Bank Base Rate.
(e) Interest shall become due and payable pursuant to the foregoing clauses notwithstanding the fact that a portion of the account be subject to any dispute or query.
(f) If in the case of any sale invoicing more than one delivery default is made in payment on the due date the Seller shall have the right forthwith to suspend any further deliveries until payment; or by notice in writing to the Buyer to terminate the contract in its entirety, whether or not the same is severable.
(g) If at any time the Buyer (being an existing credit account customer) being a company shall alter its constitution or being a sole trader or partnership shall become incorporated or amalgamated with others it shall be the duty of the Buyer to give prior written notice to the Seller of the intended change (should the Buyer wish to continue credit account facilities following any intended change). Continuance of trading with the amalgamated entity or commencement of trading with a new entity shall be in the sole discretion of and only deemed undertaken by the Seller if a written acknowledgement and acceptance is issued by the Seller's Credit Controller or Sales Director or Company Secretary.
DELIVERY
7. (a) Delivery dates mentioned in any quotation or acceptance form or elsewhere are approximate only and not of any contractual effect and the Seller shall not be under any liability to the Buyer in respect of any failure to deliver on any particular date or dates , nor shall time be of the essence of any contract.
(b) Where the Seller agrees to install the goods at the Buyer's premises the Buyer shall provide unrestricted access to the installation area and ensure that such area is ready in all respects for installation on such date as may have been agreed between the parties. In the event that the Buyer should fail to comply with this provision the Seller shall be entitled to make an additional charge in respect of any costs and expenses incurred in consequence.
(c) If the Buyer refuses or fails to take delivery of goods tendered in accordance with the contract the Seller shall be entitled to immediate payment in full for the goods so tendered. The Seller shall be entitled to store at the risk of the Buyer any goods of which the Buyer refuses or fails to take delivery and the Buyer shall in addition to the purchase price pay all costs of such storage and any additional cost or carriage incurred as a result of such refusal or failure.
RISK
8. The risk in the goods shall pass to the Buyer upon delivery.
TITLE TO GOODS
9. Until the Seller has been paid in full the price of the goods and the cost of carriage and packaging together with any interest and charges thereon:-
(i) Ownership of the goods shall remain in the Seller, and the Buyer shall hold the goods as bailee and fiduciary owner for the Seller.
(ii) The Buyer has a right to sell and deliver the goods to third parties in the ordinary course of his business, acting towards such third parties as a principal and not as the Seller's agent, but it shall hold all proceeds of sale on trust for the Seller in a separate bank account, the Buyer hereby assigning to the Seller all rights and claims which the Buyer may have against its customers arising from such sales until full payment is made as aforesaid.
(iii) The Buyer shall if required by the Seller store the goods in such a way as clearly to show the Seller's ownership of them.
(iv) The Buyer shall notify the Seller immediately upon demand by the Seller of the place or places where the goods are situated.
(v) The Buyer shall afford to the Seller access to the goods during all normal business hours whether they are upon premises occupied or owned by the Buyer or its customers and the Buyer shall deliver the goods up to the Seller at its request and allow the Seller to remove the same. For this purpose the Buyer hereby grants an irrevocable right and licence to the Seller's servants or agents to enter upon the said land with or without vehicles during normal business hours.
SELLER'S LIABILITY
10. (a) Save in the case of contracts falling within the description of contract in section 26(3) of the Unfair Contract Terms Act 1977 the Seller does not exclude liability for death or personal injury to the extent that it results from the negligence of the Seller, its servants or agents, and accepts liability for any breach on its part of any undertaking as to title implied by section 12 of the Sale of Goods Act 1979 or by section 8 of the Supply of Goods (Implied Terms) Act 1973.
(b) The Seller does not accept liability for shortages in quantities delivered unless the Buyer notifies the Seller of any claim for short delivery of the goods within 3 days of the delivery to the Buyer or to the Buyer's instructions. In such circumstances the Seller's liability shall be restricted to making good the shortage, save that in the case of orders made to the Buyer's special requirements it shall be under no such liability where the shortage is not more than 2.5% of the quantity ordered.
(c) The Seller agrees to repair or replace free of charge any goods which in the opinion of the Seller, are defective due to a manufacturing fault, but only if the same is reported to the Seller in writing within 3 days of delivery of the goods to the Buyer or the Buyer's order, provided that where the Buyer is a dealer in the goods the Seller will not be responsible either for the cost of removing any defective goods from any place where they are installed or affixed (or for making good the said place after removal) or for the cost of installing or affixing in such place any repaired or replacement goods unless the same shall have been previously agreed in writing with a Director of the Seller, and provided further that in all other cases the Seller shall have the right in its discretion to inspect and repair the goods at the Buyer's premises or at its own premises.
(d) Save as aforesaid, all liability for any representations whether oral or in writing and all guarantees, conditions or warranties whether expressed or implied by statute, common law or otherwise is hereby excluded, and the Seller shall not be liable for any loss (including consequential loss), damage or delay or expenses of any kind whatsoever and howsoever caused (including by the negligence of the Seller its servants or agents).
(e) Save as to the matters set out in (a) above in respect of which the Seller does not exclude or accepts liability, the Buyer acknowledges and agrees that it is able (if it so wishes) to insure against the risk of any loss (including consequential loss), damage or delay or expense of any kind whatsoever and howsoever caused (including by the negligence of the Seller its servants or agents).
(f) The Buyer shall indemnify the Seller against any liability which the latter may incur (whether as a result of or in connection with court proceedings or under the terms of a bona fide out of court settlement) as a result of a claim against the Seller under Part 1 of the Consumer Protection Act 1987 in respect of an alleged defect in the goods.
QUANTITIES DELIVERED
11. In the case of orders made to the Buyer's special requirements the Buyer shall be obliged to accept as a due performance of the Seller's obligations under the contract delivery of a quantity of goods up to 2.5% more or less than the quantity ordered.
SAMPLES
12. Unless otherwise agreed by the Seller in writing, the Buyer shall be liable to pay for all samples requested by the Buyer.
CANCELLATION OF ORDERS
13. The Seller may in its sole discretion accept or reject the cancellation of any order once such order has been accepted by the Seller. The Seller will in no circumstances accept the cancellation of an order for goods which are to be specially made or obtained once such an order has been accepted by the Seller nor will any allowance be made in respect of such goods where they are subsequently returned.
RETURN OF GOODS
14. Goods are not sold on a sale or return basis. The Seller may in its sole discretion accept or reject the return of any goods which have been incorrectly ordered. In the event that the Seller decides to accept the return of such goods, such acceptance shall be upon such terms as the Seller may determine and in particular the Seller reserves the right to charge for the carriage and handling of such goods.
FORCE MAJEURE CLAUSE
15. The Seller shall be under no liability for any loss (including consequential loss), or delay or expenses of any kind whatsoever caused wholly or in part by Act of God, outbreak of war, civil commotion, governmental policies or restrictions or control, including restrictions of export or import or other licences, trade or industrial control, including restrictions of export or import or other licences, trade or industrial disputes of whatever nature, whether or not such dispute involves the Seller, its servants or agents, or by any other contingency whatsoever which is beyond the control of the Seller.
BUYER'S BANKRUPTCY OR INSOLVENCY
16. If the Buyer makes a proposal for or enters into a scheme of arrangement or a composition with his or its creditors or fails to comply with a statutory demand for the repayment of a debt within the time therein allowed or if (where the Buyer is a individual or, where the Buyer is a partnership , in the case of any individual partner) an application is made to the court under Part VIII of the insolvency Act 1986 for an interim order for the purpose of a voluntary arrangement or an order is made for the administration of his estate pursuant to Part VI of the County Courts Act 1984 or a bankruptcy petition relating to him is presented to the court, or he is adjudged bankrupt, or if (where the Buyer is a company) a petition for an administration order is presented to the court pursuant to Part II of the Insolvency Act 1986 or the Buyer passes a resolution or the court makes an order that it shall be wound up (otherwise than for the purpose of amalgamation or reconstruction) or a receiver or administrative receiver is appointed of any of the assets or undertaking of the Buyer or circumstances arise which entitle the court or a creditor to appoint a receiver or administrative receiver or (where the Buyer is either a company or a partnership) which entitle the court to make a winding-up order or (whether the Buyer is a company, a partnership or an individual) the Buyer takes or suffers any similar action in consequence of debt, the Seller may stop any goods in transit and suspend further deliveries and may forthwith determine the contract without prejudice to the continuation of all the Seller's rights hereunder and to any existing claims.
NON-WAIVER OF RIGHTS
17. The failure by either party to the contract to exercise or enforce any rights conferred by the contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
NOTICES
18. Any notice hereunder shall be in permanent readable form and shall be deemed properly delivered if addressed to the party concerned at its principal place of business or last known address.
APPLICABLE LAW AND JURISDICTION
19. (a) The contract shall be governed by English law.
(b) The courts of England and Wales shall have jurisdiction over all disputes howsoever arising out of or in connection with the contract, and in the case of any claims made by the Buyer such jurisdiction shall be exclusive. |
