|
|
TERMS AND CONDITIONS OF SALE
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Buyer: the person, firm or company who purchases the Goods from the Company.
Company: Tasman Industries Limited of Lyde Green Cradley Heath Halesowen West Midlands B63 2PG
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these conditions.
Delivery Point: the place where delivery of the Goods is to take place under condition 4.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2
A reference to a particular law is a reference to it as it is in force
for the time being taking account of any amendment, extension,
application or re-enactment and includes any subordinate legislation
for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1
Subject to any variation under condition 2.3 the Contract shall be on
these conditions to the exclusion of all other terms and conditions
(including any terms or conditions which the Buyer purports to apply
under any purchase order, confirmation of order, specification or other
document).
2.2 No terms or conditions endorsed on, delivered
with or contained in the Buyer's purchase order, confirmation of order,
specification or other document shall form part of the Contract simply
as a result of such document being referred to in the Contract.
2.3
These conditions apply to all the Company'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 of
the Company. The Buyer acknowledges that it has not relied on any
statement, promise or representation made or given by or on behalf of
the Company, which is not set out in the contract. Nothing in this
condition shall exclude or limit the Company's liability for fraudulent
misrepresentation.
2.4 Each order or acceptance of a quotation
for Goods by the Buyer from the Company shall be deemed to be an offer
by the Buyer to buy Goods subject to these conditions.
2.5 No
order placed by the Buyer shall be deemed to be accepted by the Company
until the Company issues a written acknowledgement of order or (if
earlier) the Company delivers the Goods to the Buyer.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7
Any quotation is given on the basis that no Contract shall come into
existence until the Company despatches an acknowledgement of order to
the Buyer. Any quotation is valid for a period of 30 days only from its
date, provided that the Company has not previously withdrawn it.
3. DESCRIPTION
3.1 The quantity and description of the Goods shall be as set out in the Company's quotation or acknowledgement of order.
3.2
All samples, drawings, descriptive matter, specifications and
advertising issued by the Company and any descriptions or illustrations
contained in the Company's catalogues or brochures are issued or
published for the sole purpose of giving an approximate idea of the
Goods described in them. They shall not form part of the Contract and
this is not a sale by sample.
4. DELIVERY
4.1 Unless otherwise
agreed in writing by the Company, delivery of the Goods shall take
place at the Company's place of business.
4.2 The Buyer shall
take delivery of the Goods within 7 days of the Company giving it
notice that the Goods are ready for delivery.
4.3 Any dates
specified by the Company for delivery of the Goods are intended to be
an estimate and time for delivery shall not be made of the essence by
notice. If no dates are so specified, delivery shall be within a
reasonable time.
4.4 Subject to the other provisions of these
conditions the Company shall not be liable for any direct, indirect or
consequential loss (all three of which terms include, without
limitation, pure economic loss, loss of profits, loss of business,
depletion of goodwill and similar loss), costs, damages, charges or
expenses caused directly or indirectly by any delay in the delivery of
the Goods (even if caused by the Company's negligence), nor shall any
delay entitle the Buyer to terminate or rescind the Contract unless
such delay exceeds 180 days.
4.5 If for any reason the Buyer
fails to accept delivery of any of the Goods when they are ready for
delivery, or the Company is unable to deliver the Goods on time because
the Buyer has not provided appropriate instructions, documents,
licences or authorisations:
(a) Risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company's negligence);
(b) The Goods shall be deemed to have been delivered; and
(c)
The Company may store the Goods until delivery, whereupon the Buyer
shall be liable for all related costs and expenses (including, without
limitation, storage and insurance).
4.6 The Buyer shall provide
at the Delivery Point and at its expense adequate and appropriate
equipment and manual labour for loading the Goods.
4.7 If the
Company delivers to the Buyer a quantity of Goods of up to 10% more or
less than the quantity accepted by the Company, the Buyer shall not be
entitled to object to or reject the Goods or any of them by reason of
the surplus or shortfall and shall pay for such goods at the pro rata
Contract rate.
4.8 The Company may deliver the Goods by separate
instalments. Each separate instalment shall be invoiced and paid for in
accordance with the provisions of the Contract.
4.9 Each
instalment shall be a separate Contract and no cancellation or
termination of any one Contract relating to an instalment shall entitle
the Buyer to repudiate or cancel any other Contract or instalment.
5. NON-DELIVERY
5.1
The quantity of any consignment of Goods as recorded by the Company
upon despatch from the Company's place of business shall be conclusive
evidence of the quantity received by the Buyer on delivery unless the
Buyer can provide conclusive evidence proving the contrary.
5.2
The Company shall not be liable for any non-delivery of Goods (even if
caused by the Company's negligence) unless the Buyer gives written
notice to the Company of the non-delivery within 5 days of the date
when the Goods would in the ordinary course of events have been
received.
5.3 Any liability of the Company for non-delivery of
the Goods shall be limited to replacing the Goods within a reasonable
time or issuing a credit note at the pro rata Contract rate against any
invoice raised for such Goods.
6. RISK/TITLE
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2
Ownership of the Goods shall not pass to the Buyer until the Company
has received in full (in cash or cleared funds) all sums due to it in
respect of:
(a) The Goods; and
(b) All other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) Hold the Goods on a fiduciary basis as the Company's bailee;
(b)
Store the Goods (at no cost to the Company) separately from all other
goods of the Buyer or any third party in such a way that they remain
readily identifiable as the Company's property;
(c) Not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d)
Maintain the Goods in satisfactory condition and keep them insured on
the Company's behalf for their full price against all risks to the
reasonable satisfaction of the Company. On request the Buyer shall
produce the policy of insurance to the Company.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) Any sale shall be effected in the ordinary course of the Buyer's business at full market value; and
(b)
Any such sale shall be a sale of the Company's property on the Buyer's
own behalf and the Buyer shall deal as principal when making such a
sale.
6.5 The Buyer's right to possession of the Goods shall terminate immediately if:
(a)
The Buyer has a bankruptcy order made against him or makes an
arrangement or composition with his creditors, or otherwise takes the
benefit of any statutory provision for the time being in force for the
relief of insolvent debtors, or (being a body corporate) convenes a
meeting of creditors (whether formal or informal), or enters into
liquidation (whether voluntary or compulsory) except a solvent
voluntary liquidation for the purpose only of reconstruction or
amalgamation, or has a receiver and/or manager, administrator or
administrative receiver appointed of its undertaking or any part
thereof, or documents are filed with the court for the appointment of
an administrator of the Buyer or notice of intention to appoint an
administrator is given by the Buyer or its directors or by a qualifying
floating charge holder, or a resolution is passed or a petition
presented to any court for the winding-up of the Buyer or for the
granting of an administration order in respect of the Buyer, or any
proceedings are commenced relating to the insolvency or possible
insolvency of the Buyer; or
(b) The Buyer suffers or allows any
execution, whether legal or equitable, to be levied on his/its property
or obtained against him/it, or fails to observe or perform any of
his/its obligations under the Contract or any other contract between
the Company and the Buyer, or is unable to pay its debts within the
meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases
to trade; or
(c) The Buyer encumbers or in any way charges any of the Goods.
6.6
The Company shall be entitled to recover payment for the Goods
notwithstanding that ownership of any of the Goods has not passed from
the Company.
6.7 The Buyer grants the Company, 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 the Buyer's right to possession has terminated, to recover them.
6.8
Where the Company is unable to determine whether any Goods are the
goods in respect of which the Buyer's right to possession has
terminated, the Buyer shall be deemed to have sold all goods of the
kind sold by the Company to the Buyer in the order in which they were
invoiced to the Buyer.
6.9 On termination of the Contract,
howsoever caused, the Company's (but not the Buyer's) rights contained
in this condition 6 shall remain in effect.
7. PRICE
7.1 Unless
otherwise agreed by the Company in writing, the price for the Goods
shall be the price previously quoted in writing to the Buyer.
7.2
The price for the Goods shall be exclusive of any value added tax and
all costs or charges in relation to packaging, loading, unloading,
carriage and insurance and which for the purposes of clarification
include a handling charge (to be ascertained by the Company) for the
return of Goods to the Buyer or other nominated person or body all of
which amounts the Buyer shall pay in addition when it is due to pay for
the Goods or at such other time as maybe specified by the Company.
7.3
In addition to the price for the Goods, the Buyer shall pay on demand
to the Company the costs and expenses incurred by the Company in
obtaining any materials, components and/or equipment acquired in
connection with meeting the Buyer's requirements or order or in
relation to any Contract which may not be immediately utilised and the
acquisition of such said materials, components and equipment has been
confirmed by the Buyer signing the Company's "continuity of supply
form" or as otherwise may be confirmed by the Buyer.
8. PAYMENT
8.1
Subject to condition 8.4, payment of the price for the Goods is due in
pounds sterling on the date of the invoice to the Customer unless
otherwise agreed in writing by the Company in which case it shall be
the last working day of the month following the month in which the
Goods are delivered or deemed to be delivered.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4
All payments payable to the Company under the Contract shall become due
immediately on its termination despite any other provision.
8.5
The Buyer shall make all payments due under the Contract in full
without any deduction whether by way of set-off, counterclaim,
discount, abatement or otherwise unless the Buyer has a valid court
order requiring an amount equal to such deduction to be paid by the
Company to the Buyer.
8.6 If the Buyer fails to pay the Company
any sum due pursuant to the Contract, the Buyer shall be liable to pay
interest to the Company on such sum from the due date for payment at
the annual rate of 5% above the base lending rate from time to time of
Lloyds TSB, accruing on a daily basis until payment is made, whether
before or after any judgement. The Company reserves the right to claim
interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9. LIMITATION OF LIABILITY
9.1
Subject to condition 4 and condition 5, the following provisions set
out the entire financial liability of the Company (including any
liability for the acts or omissions of its employees, agents and
sub-contractors) to the Buyer in respect of:
(a) Any breach of these conditions;
(b) Any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c)
Any representation, statement or tortious act or omission including
negligence arising under or in connection with the Contract.
9.2
All warranties, conditions and other terms implied by statute or common
law (save for the conditions implied by section 12 of the Sale of Goods
Act 1979) are, to the fullest extent permitted by law, excluded from
the Contract.
9.3 Nothing in these conditions excludes or limits the liability of the Company:
(a) For death or personal injury caused by the Company's negligence; or
(b) Under section 2(3), Consumer Protection Act 1987; or
(c) For any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) For fraud or fraudulent misrepresentation.
9.4 Subject to condition 9.2 and condition 9.3:
(a)
The Company's total liability in contract, tort (including negligence
or breach of statutory duty), misrepresentation, restitution or
otherwise, arising in connection with the performance or contemplated
performance of the Contract shall be limited to the Contract price; and
(b)
The Company shall not be liable to the Buyer for any pure economic
loss, loss of profit, loss of business, depletion of goodwill or
otherwise, in each case whether direct, indirect or consequential, or
any claims for consequential compensation whatsoever (howsoever caused)
which arise out of or in connection with the Contract.
10. ASSIGNMENT
10.1 The Company may assign the Contract or any part of it to any person, firm or company.
10.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
11. FORCE MAJEURE
The
Company reserves the right to defer the date of delivery or to cancel
the Contract or reduce the volume of the Goods ordered by the Buyer
(without liability to the Buyer) if it is prevented from or delayed in
the carrying on of its business due to circumstances beyond the
reasonable control of the Company 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 56 days, the Buyer shall
be entitled to give notice in writing to the Company to terminate the
Contract.
12. GENERAL
12.1 Each right or remedy of the Company
under the Contract is without prejudice to any other right or remedy of
the Company whether under the Contract or not.
12.2 If any
provision of the Contract is found by any court, tribunal or
administrative body of competent jurisdiction to be wholly or partly
illegal, invalid, void, voidable, unenforceable or unreasonable it
shall to the extent of such illegality, invalidity, voidness,
voidability, unenforceability or unreasonableness be deemed severable
and the remaining provisions of the Contract and the remainder of such
provision shall continue in full force and effect.
12.3 Failure
or delay by the Company in enforcing or partially enforcing any
provision of the Contract shall not be construed as a waiver of any of
its rights under the Contract.
12.4 Any waiver by the Company of
any breach of, or any default under, any provision of the Contract by
the Buyer shall not be deemed a waiver of any subsequent breach or
default and shall in no way affect the other terms of the Contract.
12.5
The parties to the Contract do not intend that any term of the Contract
shall be enforceable by virtue of the Contracts (Rights of Third
Parties) Act 1999 by any person that is not a party to it.
12.6
The formation, existence, construction, performance, validity and all
aspects of the Contract shall be governed by English law and the
parties submit to the exclusive jurisdiction of the English courts.
13. COMMUNICATIONS
13.1
All communications between the parties about the Contract shall be in
writing and delivered by hand or sent by pre-paid first class post or
sent by email transmission or fax:
(a) (In case of
communications to the Company) to its registered office or such changed
address as shall be notified to the Buyer by the Company; or
(b)
(In the case of the communications to the Buyer) to the registered
office of the addressee (if it is a company) or (in any other case) to
any address of the Buyer set out in any document which forms part of
the Contract or such other address as shall be notified to the Company
by the Buyer.
13.2 Communications shall be deemed to have been received:
(a)
If sent by pre-paid first class post, two days (excluding Saturdays,
Sundays and bank and public holidays) after posting (exclusive of the
day of posting); or
(b) If delivered by hand, on the day of delivery; or
(c)
If sent by email transmission or fax on a working day prior to 5.00 pm,
at the time of transmission and otherwise on the next working day.
|
|