The following words shall have the following meanings:
1.1 ‘Buyer’s Provisions’ has the meaning given in clause 3.4;
1.2 ‘Delivery Date’ means – the date as agreed at the time of the order;
1.3 ‘Goods’ are as set out in Schedule 1;
1.4 ‘Payment Date’ means not later than the end of the month following the month shown to be the date of the invoice for the Goods unless otherwise agreed;
1.5 ‘Price’ means price as agreed at the time of the order; and
2.1 The Buyer orders, and the Seller agrees to sell to the Buyer, the Goods at the Price for delivery by the Delivery Date.
2.2 The quantity and description of the Goods are set out in the order received from the Buyer.
2.3 Reference should be made to any pre-existing framework or other agreement between the Parties with regards to the Good ordered and Price applicable.
3 Conditions applicable
3.1 The sale of the Goods by the Seller to the Buyer that is constituted by and recorded in these terms and conditions shall be governed solely, throughout the performance of this document and for as long as obligations subsist under or in connection with this document, by the express provisions of this document.
3.2 Subject to clause 3.10:
3.2.1 no provision other than a provision that is expressly set out in this Document shall become a term of this Document; and
3.2.2 no provision that is not expressly set out in this Document shall in any manner govern or affect this Document or any obligation arising under or in connection with this Document.
3.3 Clause 3.2 shall apply regardless of:
3.3.1 the manner in which or the time at which the Buyer purports to proffer or incorporate such other provision(s) into this Document; and
3.3.2 whether the Buyer invokes, proffers or seeks to bring into effect such other provision(s) by way of contract term or notice.
3.4 For the avoidance of doubt, and in accordance with this clause 3 generally:
3.4.1 the reference to a provision that is not set out in this Document includes (without limitation or other prejudice to the general meaning of such reference) any provision emanating from standard terms or conditions routinely proffered or employed by the Buyer in the course of the Buyer’s business or profession (‘Buyer’s Provisions’) that the Buyer invokes, proffers, or purports to bring into effect as governing this Document; and
3.4.2 the Buyer acknowledges and agrees that the Seller shall not be bound by any of the Buyer’s Provisions.
3.5 Acceptance of the delivery of the Goods shall occur and be deemed to occur immediately on the entry or inscription of the Buyer’s signature on the Seller’s standard delivery note, which entry or inscription shall immediately constitute, and be deemed to constitute, conclusive evidence of the Buyer’s satisfaction with and acceptance of the Goods.
3.6 No purported variation of any of the provisions of this Document, whether such purported variation purports to have been made or to be made before or after the conclusion of this Document, shall apply to or affect this Document or any obligation arising under or in connection with this Document nor become binding on the Seller, unless and until the Seller has agreed to it in writing and in terms that conform to clause 14.2.
The Buyer acknowledges and agrees that any description which is given or applied to the Goods:
4.1 is solely for purposes of reference and does not constitute or afford the basis for any express or implied undertaking that the Goods correspond with or conform to such reference; and
4.2 shall not make this Document a sale by description; and
4.3 is not and has not been relied on by the Buyer whenplacing an order.
The Buyer acknowledges and agrees that when a sample of the Goods has been shown to or inspected by the Buyer:
5.1 the sole purpose of so doing was to enable the Buyer to judge the quality of the bulk; and
5.2 the sale does not, in consequence of the Buyer’s inspection of the sample or otherwise, constitute a sale by sample.
6.1 The Buyer shall pay the Price for the Goods as stated on the Seller’s invoice and not (where different) as expressed in any quotation, estimate or documentation, or given orally.
6.2 Unless agreed separately and in writing by the Seller, the price of the Goods shall be the price ruling at the date of dispatch together with any VAT or government taxes.
7.1 Payment for the Goods shall be made on the Payment Date except if otherwise agreed in writing by the Seller.
7.2 All amounts stated are exclusive of VAT and any other applicable taxes or levies, which shall be charged in addition at the rate in force at the date any payment is required from the Buyer.
7.3 If payment is not received by the due date, the Seller at its exclusive discretion shall be entitled:
7.3.1 to charge interest on the outstanding amount at the rate of 1.5% per month or part of a month, the amount of interest being payable in full on demand; and/or
7.3.2 to require that the Buyer make a payment in advance of any delivery not yet made whether under this or any other contract; and/or
7.3.3 to cancel all or any other contract with the Buyer.
7.4 Notwithstanding any statement to the contrary in any invoice or confirmation of sale note or other document from the Seller, the Seller reserves the right to demand payment of the payment at any time.
7.5 On any account not paid within the Seller’s terms of trading the Seller reserves the right to add to the account any costs incurred in instructing an agent or solicitor to act on their behalf in recovery of the account.
8.1 The Seller shall deliver the Goods to the address of the Buyer as stated on the Buyer’s order on the Delivery Date.
8.2 The cost of delivery if applicable shall be in addition to the Price.
8.3 The cost of delivery if applicable shall be subject to the method of delivery, and shall be payable at the same time and in the same manner as the Price.
8.4 Time for delivery shall not be the essence of the contract.
8.5 Any times stated for collection or delivery shall be a bona fide estimate only and whilst the Seller will use all reasonable endeavours to meet any such times stated the Seller shall not be liable for any delay howsoever caused.
8.6 For the avoidance of doubt, both the Delivery Date and any other date given under or pursuant to this Document is no more than an estimate, and the Seller’s conformity with such date is not, and shall not in any event or circumstance be or become, of the essence of this Document.
8.7 The Seller will accept no liability for loss of damage to the Goods in transit unless preliminary notice is given to the Seller within twenty four hours of receipt of the Goods by the Buyer and unless a complete statement of claim is received by the Seller within three days of receipt of the Goods by the Buyer.
8.8 The Seller shall not be liable to the Buyer for all direct, indirect and consequential losses arising from any breach by the Seller of the provisions of these terms and conditions.
The risk in the Goods shall pass to the Buyer on the Delivery Date.
10.1 The property in the Goods shall not pass to the Buyer until the Seller has received the full amount of the Price and any other sums that are owed to the Seller by the Buyer.
10.2 The Buyer shall, subject to Clause 10.3 and 10.4 below, store the Goods separately from other goods in the possession of the Buyer.
10.3 The Buyer shall be at liberty to sell the Goods or incorporate the Goods in or together with any product manufactured or assembled for sale in the ordinary course of business on the basis that:
10.3.1 The Buyer shall complete sale as the Seller’s agent;
10.3.2 The Buyer’s liability to account as agent for the proceeds of such sale shall be limited to the Seller’s invoice value of the Goods sold or so incorporated;
10.3.3 All proceeds of sale of such Goods or incorporated Goods shall be used to satisfy any outstanding invoice owed to the Seller for which the Buyer shall account on demand.
10.4 The Buyer shall maintain records sufficient to enable such products to be identified and for the Goods so incorporated to be identified, measured or otherwise quantified.
10.5 The powers of the Buyer referred to in Clauses 10.3 and 10.4 shall be determined:-
10.5.1 By written notice to the Buyer if any payment for Goods remains unpaid 14 days after becoming due to the Seller;
10.5.2 Automatically if the Buyer enters any form of insolvency.
10.6 Upon determination of the powers of the Buyer referred to in Clauses 10.3 and 10.4 the Buyer shall place the Goods at the Seller’s disposal and the Seller shall be entitled to enter upon the premise of the Buyer and remove any Goods including any Goods which may have been incorporated into other products of affixed to the realty.
10.7 Clause 10.1 shall apply irrespective of whether delivery has been made.
The Buyer acknowledges and agrees:
11.1 that the Buyer has had a reasonable opportunity to inspect the Goods before signing the Seller’s delivery note;
11.2 that the Buyer has inspected the Goods before signing the Seller’s delivery note;
11.3 that the Buyer has satisfied itself as to the condition of the Goods before signing the Seller’s delivery note;
11.4 that the sole and exclusive undertaking given by the Seller as to the quality or fitness for any purpose of the Goods shall be that (if any) set outas previously agreed;
11.5 that except and in so far as is provided (if at all) in Schedule 1:
11.5.1 the Seller gives no representation or undertaking, and shall be bound by no condition, warranty, innominate term or other obligation (whether express or implied, and whether imposed or implied by statute, at common law or otherwise) concerning the condition, quality, physical state or attributes, location, origin, fitness or suitability for any purpose, or conformity with description or sample, of the Goods;
11.5.2 the Goods are not unless otherwise stated sold or tested as conforming to any British Standard or as fit for any particular purpose unless the Seller expressly so states in writing and any term, condition or warranty that the Goods are so fit is excluded;
11.5.3 the Buyer shall not be taken as relying on the skill or judgment of the Seller with regard to the Goods;
11.5.4 the Buyer shall not claim to rely upon any representation unless made or confirmed in writing by the Seller;
11.5.5 the Seller shall not be liable for any direct or consequential loss of any nature whatsoever said to have occurred consequent on the supply or the circumstances of the supply of any Goods;
11.5.6 all liability on the part of the Seller in respect of the matters referred to in clauses 11.5.1 to 11.5.5 is excluded; and
11.5.7 the Buyer undertakes not to bring any claim or resort to any proceeding in respect of the matters referred to in clauses 11.5.1 to 11.5.5;
11.6 that the entry or inscription of the Buyer’s signature on the Seller’s delivery note on delivery of the Goods to the Buyer shall be conclusive evidence that the Buyer has examined the Goods and that the Goods correspond in every respect with the Goods that the Buyer is entitled to receive under this Document.
12 Defects and Discrepancies
12.1 The Seller may, at the Seller’s exclusive and unqualified discretion, make good either by repair or by the provision of a replacement, any defect which, following proper use of the Goods, appears in the Goods within the period as specified by the manufacturers warranty, provided that:
12.1.1 the Buyer notifies the Seller in writing of the claimed defect(s) immediately on their appearance; and
12.1.2 the Seller is satisfied that the sole cause of the defect(s) is:
18.104.22.168 faulty design (other than a design made, furnished or specified by the Buyer for which the Seller has disclaimed responsibility in writing), or
22.214.171.124 faulty materials, or
126.96.36.199 faulty workmanship, and
12.1.3 all Goods claimed to be defective are returned to the Seller at the expense of the Buyer within the period stipulated by the Seller, following the Seller’s receipt of notice in accordance with clause 12.1.1.
12.2 Repaired or replacement Goods shall:
12.2.1 be delivered to the Buyer at the original place of delivery; and
12.2.2 be subject in all other respects (mutatis mutandis) to the provisions of this Document, and
in particular, without limitation and in accordance with clause 11.4 and clause 11.5, the Seller undertakes no responsibility for the condition, quality, physical state or attributes, location, origin, fitness or suitability for any purpose, or conformity with description or sample, of such repaired or replacement Goods or any portion, part or component of them.
12.3 Any Goods returned and accepted by the Seller as defective or not in accordance with the Buyer’s order shall not form the subject of claim for labour or other expenditure.
12.4 As an alternative to the discretion expressed in clause 12.1, and in the event that the Buyer has already paid the Price when the Buyer notifies the claimed defect to the Seller, the Seller may, at its exclusive and unqualified discretion:
12.4.1 refund the Price of the Goods to the Buyer; and thereafter
12.4.2 recover possession of the Goods from the Buyer.
12.5 Discrepancies must be advised to the Seller in writing within three days of the Advice Note date. Claims outside this period will not be considered. The Seller must be given the opportunity to inspect and re-count or re-weigh the Goods to satisfy itself of any discrepancy before the Seller will agree to rectify the same.
12.6 The redress afforded by this clause 12 is without prejudice to the other provisions of this Document.
13.1 Without prejudice to any other right or remedy to which either the Seller or the Buyer might be entitled, either of those parties may terminate this Document at any time by notice in writing to the other party (‘the Other Party’), under the following circumstances:
13.1.1 The Other Party is in breach of this document and such breach is not remedied within 5 working days
13.1.2 The Other Party becomes insolvent
13.1.3 the Seller cannot continue to supply the Goods for any reason
14 Defences and variations
14.1 Force majeure
14.1.1 Neither party shall owe or incur any liability under or in connection with, or be deemed to be in breach of, this Document by reason of any delays in, revisions to, or failures in performance of this Document that result from circumstances beyond the reasonable control of that party.
14.1.2 The party affected by the circumstances referred to in clause 14.1.1 shall promptly notify the other party in writing:
188.8.131.52 when the occurrence of any circumstance referred to in clause 14.1.1 causes, or can reasonably be expected to cause or to threaten to cause, a delay, revision or failure in performance; and
184.108.40.206 when any such circumstance ceases to do so.
14.1.3 If such circumstances continue for a continuous period of more than 7 days, either party may terminate this Document by written notice to the other party.
14.2.1 No inaction, omission, failure or delay by the Seller in exercising or securing the enforcement or validity of any right, power, privilege or demand arising under or in connection with this Document, and no single or partial exercise of any such right, power, privilege or demand shall impair the existence, operation, content, effect and enforcement of the said right, power, privilege or demand, or operate as a waiver of it.
15 Integrity, continuity, exclusivity and enforcement
If any provision of this Document is prohibited by law, or is determined by any court of law or other binding adjudicatory authority or conceded by the parties to be unlawful, void or unenforceable, the provision shall be severed without modifying or affecting the validity of the remaining provisions of the agreement.
15.2.1 Subject to clause 15.3.2, neither party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Document without the prior written document of the other party.
15.2.2 A party may, however, assign and transfer all its rights and obligations under this Document to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other party to be bound by the obligations of the assignor under this Document.
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