Trading Terms & Conditions
Conditions of Purchase
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
- Company: means the Avon Group Manufacturing Ltd (company number 1562118) whose registered office is 30 Vale Lane, Bedminster, Bristol, BS3 5RU
- Contract: the Purchase Order and the Seller’s acceptance of the Purchase Order.
- Goods: any Goods agreed in the Contract to be bought by the Company from the Seller (including any part or parts of them).
- Letter of Acceptance: a letter of acceptance from the Company in respect of the Goods and/or Services.
- Purchase Order: the Company’s written instruction to buy the Goods and/or Services, incorporating these conditions and where applicable the Specification.
- Seller: the person, firm or company who accepts the Company’s Purchase Order.
- Seller’s Quotation: a quotation by the Seller in respect of the Goods and/or Services.
- Services: any services agreed in the Contract to be bought by the Company from the Seller.
- Specification: the Company’s written requirements in respect of the Goods and/or Services.
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 A reference to one gender includes a reference to the other gender.
1.4 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.4, these conditions are the only conditions upon which the Company is prepared to deal with the Seller and they shall govern the Contract to the entire exclusion of all other terms or conditions. The Contract shall, unless otherwise agreed in writing by the parties, comprise the entire agreement and shall supersede all previous arrangements, discussions or agreements between the parties, but for the avoidance of doubt, any representations made by the Seller to the Company regarding the quality or specification of the Goods or Services shall be deemed to form part of the Contract.
2.2 Each Purchase Order for Goods and/or Services by the Company from the Seller shall be deemed to be an offer by the Company to buy Goods and/or Services subject to these conditions and no Purchase Order shall be accepted until the Seller either expressly by giving notice of acceptance, or impliedly by fulfilling the Purchase Order, in whole or in part accepts the offer.
2.3 No standard terms or conditions endorsed upon, delivered with or contained in the Seller’s quotation, acknowledgement or acceptance of order, specification or similar document shall form part of the Contract and the Seller waives any right which it otherwise might have to rely on such standard terms and conditions. In the event of any dispute or conflicting terms the order of priority shall be the Letter of Acceptance, Purchase Order, Specification and the Seller’s Quotation.
2.4 These conditions apply to all the Company’s purchases and any variation to these conditions or to the Specification shall have no effect unless expressly agreed in writing and signed by a director or an authorised signatory of the Company.
3. QUALITY AND DEFECTS
3.1 The Goods shall be new and unused, of the best available design, of the best quality, material and workmanship, be without fault and conform in all respects with the Purchase Order and Specification and/or patterns supplied or advised by the Company to the Seller.
3.2 The Seller shall be deemed to have knowledge of the purpose for which the Goods and/or Services are required and the Goods shall be fit for purpose and of merchantable quality, properly packed and secured. The Goods shall be equal in all respects to any samples, patterns, demonstration or specification provided or given by either party and shall be capable of any standard of performance specified in the Purchase Order. The Services to be supplied shall be of a standard acceptable to the Company.
3.3 The Company’s rights under these conditions are in addition to the statutory conditions implied in favour of the Company by the Sale of Goods Act 1979 and Supply of Goods and Services Act 1982. The Seller shall comply with all legislation applicable to the provision of the Goods and/or Services including compliance with any health and safety requirements in respect of the Goods and/or Services or policies or procedures operated by the Company or its customers at any of their sites.
3.4 At any time prior to delivery of the Goods to the Company the Company shall have the right to inspect and test the Goods at all times. Such inspection/testing does not imply acceptance of the Goods.
3.5 If the results of such inspection or testing cause the Company to be of the opinion that the Goods do not conform or are unlikely to conform with the Purchase Order or to any specifications and/or patterns supplied or advised by the Company to the Seller, the Company shall inform the Seller and the Seller shall immediately take such action as is necessary to ensure conformity and in addition the Company shall have the right to require and witness further testing and inspection.
3.6 Notwithstanding any such inspection or testing, the Seller shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Seller’s obligations under the Contract.
3.7 Where the Seller is providing Services, such Services must be supplied using all the reasonable care, skill and diligence expected of properly qualified and experienced persons and in accordance with any requirements or specifications set out in the Purchase Order.
3.8 Where a Purchase Order includes manufacture to the Company’s design(s) the Seller shall inform the Company as soon as possible of any invention or improvement in design or method of manufacture arising out of the performance of the Purchase Order and any intellectual property rights in respect of the same shall belong solely to the Company. The Seller will give the Company, at the Company’s expense, all necessary assistance to enable the Company to obtain the benefit of all and any such rights whether registrable or not in any part of the world.
3.9 If any of the Goods and/or Services fail to comply with the provisions set out in condition 3 the Company shall be entitled to avail itself of any one or more remedies listed in condition 12.
The Seller shall keep the Company indemnified in full against all direct and indirect liabilities (all of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with:
- (a) defective workmanship, quality or materials;
- (b) an infringement or alleged infringement of any intellectual property rights caused by the use, manufacture or supply of the Goods and/or Services; and
- (c) any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Company’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods and/or Services as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Contract by the Seller.
5.1 The Goods shall be adequately protected against damage and deterioration in transit and delivered, carriage paid, and where applicable the Services provided to the Company’s place of business or to such other place of delivery as is agreed by the Company in writing prior to delivery of the Goods and/or provision of the Services. The Seller shall off-load the Goods at its own risk as directed by the Company.
5.2 The time and date for delivery shall be specified in the Purchase Order, or in a programme agreed by the Company.
5.3 The Seller shall invoice the Company upon, but separately from, despatch of the Goods and/or provision of the Services to the Company. The invoice must show the relevant Purchase Order number.
5.4 The Seller shall ensure that each delivery is accompanied by a delivery note which shows, among other things, the Purchase Order number, date of Purchase Order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered. If the Company requires it, information relating to the Goods and/or Services must be supplied free of charge on delivery including, without limitation, a certificate of conformity.
5.5 Time for delivery shall be of the essence.
5.6 Unless otherwise stipulated by the Company in the Purchase Order, deliveries shall only be accepted by the Company in normal business hours.
5.7 If the Goods and/or Services are not delivered or provided on the due date then, without prejudice to any other rights which it may have, the Company reserves the right to:
- (a) cancel the Contract in whole or in part and reject the Goods and/or Services;
- (b) refuse to accept any subsequent delivery or provision of the Goods and/or Services which the Seller attempts to make;
- (c) recover from the Seller any expenditure reasonably incurred by the Company in obtaining the Goods and/or Services in substitution from another supplier; and
- (d) claim damages for any additional costs, loss or expenses incurred by the Company which are in any way attributable to the Seller’s failure to deliver the Goods or provide the Services on the due date.
5.8 Where the Company agrees in writing to accept delivery by instalments the Contract shall be construed as a single contract in respect of each instalment. Nevertheless failure by the Seller to deliver any one instalment shall entitle the Company at its option to treat the whole Contract as repudiated.
5.9 If the Goods are delivered to the Company in excess of the quantities ordered the Company shall not be bound to pay for the excess and any excess shall be and shall remain at the Seller’s risk and shall be returnable at the Seller’s expense. If the Goods are delivered in advance of the due date the Company may reject the Goods at the Seller’s expense or accept them, but will not be bound to pay for the same until the month following the month in which delivery should have taken place.
5.10 The Company shall have the right to postpone or cancel any Purchase Order at anytime. In relation to cancelled Purchase Orders the Company’s only liability to the Seller shall paying for Goods and/or Services delivered prior to such cancellation.
The Goods shall remain at the risk of the Seller until delivery to the Company is complete (including off-loading and stacking and signature by the Company of a delivery note where the Seller delivers the Goods or loading being complete in the event of collection) when ownership of the Goods shall pass to the Company. Where Goods are rejected by the Company risk shall pass to the Seller upon such rejection. The Seller shall maintain adequate insurance in respect of the provision of the Goods and/or Services and shall provide a copy of its insurance policy and premium receipt upon request by the Company.
7.1 The price of the Goods and/or Services shall be stated in the Purchase Order and unless otherwise agreed in writing by the Company shall be exclusive of value added tax but inclusive of all other charges.
7.2 No variation in the price nor extra charges shall be accepted by the Company. No payment will be made for crates or packing material unless agreed on the Purchase Order.
8.1 Subject to the Seller’s compliance with these conditions, the Company shall pay the price of the Goods and/or Services within 60 days from the end of the month of receipt of invoice, but time for payment shall not be of the essence of the Contract.
8.2 Without prejudice to any other right or remedy, the Company reserves the right to set off any amount owing at any time from the Seller to the Company against any amount payable by the Company to the Seller under the Contract.
The Seller shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Seller by the Company or its agents and any other confidential information concerning the Company’s business or its products including a Purchase Order and its subject matter which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller’s obligations to the Company and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Seller. The Seller shall not publicise the fact it is supplying Goods and/or Services to the Company without the Company’s prior written consent.
10. THE COMPANY’S PROPERTY/TOOLING
Materials, equipment, tools, dies, jigs, patterns, moulds, copyright, design rights or any other forms of intellectual property rights in all drawings, specifications and data supplied by the Company to the Seller or not so supplied but used by the Seller specifically in the manufacture of the Goods and/or Services shall at all times be and remain the exclusive property of the Company but shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to the Company and shall not be disposed of other than in accordance with the Company’s written instructions, nor shall such items be used otherwise than as authorised by the Company in writing. Such items shall where possible be marked the property of the Company and shall not be used by the Seller for any purpose other than supplying the Goods and/or Services pursuant to the Purchase Order.
11.1 The Company shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Seller written notice whereupon all work on the Contract shall be discontinued and the Company shall pay to the Seller fair and reasonable compensation for work-in-progress at the time of termination but such compensation shall not include loss of anticipated profits or any consequential loss.
11.2 The Company shall have the right at any time by giving notice in writing to the Seller to terminate the Contract immediately if:
- (a) the Seller commits a material breach of any of the terms and conditions of the Contract; or
- (b) any distress, execution or other process is levied upon any of the assets of the Seller; or
- (c) the Seller 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 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 Seller or notice of intention to appoint an administrator is given by the Seller or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Seller or for the granting of an administration order in respect of the Seller, or any proceedings are commenced relating to the insolvency or possible insolvency of the Seller; or
- (d) the Seller ceases or threatens to cease to carry on its business; or
- (e) the financial position of the Seller deteriorates to such an extent that in the opinion of the Company the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy.
11.3 The termination of the Contract, however arising, shall be without prejudice to the rights and duties of the Company accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
Without prejudice to any other right or remedy which the Company may have, if any Goods and/or Services are not supplied in accordance with, or the Seller fails to comply with, any of the terms of the Contract the Company shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods and/or Services have been accepted by the Company:
- (a) to rescind the Purchase Order;
- (b) to reject the Goods and/or Services (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods and/or Services so returned shall be paid forthwith by the Seller;
- (c) at the Company’s option to give the Seller the opportunity at the Seller’s expense either to remedy any defect in the Goods and/or Services or to supply replacement Goods and/or Services and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
- (d) to refuse to accept any further deliveries/provision of the Goods and/or Services but without any liability to the Seller;
- (e) to carry out at the Seller’s expense any work necessary to make the Goods and/or Services comply with the Contract; and
- (f) to claim such damages as may have been sustained in consequence of the Seller’s breach or breaches of the Contract.
13.1 The Seller shall not be entitled to sub-contract its rights or obligations or assign the Contract or any part of it without the prior written consent of the Company.
13.2 The Company may assign the Contract or any part of it to any person, firm or company.
14. FORCE MAJEURE
14.1 Neither party shall be liable for failure to perform its obligations under this Contract if such failure results from circumstances beyond the party’s reasonable control (excluding for the avoidance of doubt a labour strike/dispute or lockout in respect of a party) (a “Force Majeure Event”).
14.2 If either party is affected by a Force Majeure Event, it will use all reasonable endeavours to avoid or cure the Force Majeure Event and will promptly notify the other party of the nature of the Force Majeure Event, the nature of any actual or anticipated failure, delay or imperfect performance and the anticipated consequence and length of such failure, delay or imperfect performance.
14.3 If either party is prevented by Force Majeure Event from performance of its obligations for a continuous period in excess of one month the other party may terminate this Agreement forthwith on service of written notice upon the party so prevented, in which case neither party shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist.
15.1 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.
15.2 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.
15.3 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.
15.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Seller shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
15.5 Any notice to be served under these conditions must be in writing and may be delivered by prepaid first class post or by fax. Delivery shall be deemed to have taken place immediately in the case of fax transmission or 48 hours after posting.
15.6 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.
15.7 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.
Conditions of Sale
1.1 In these conditions:-
- 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.
- Conditions: means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller
- Contract: means the contract for sale of the Goods the terms of which are set out in these Conditions
- Ex Works: the definition given to such terms in Incoterms 1990.
- Goods: means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions
- Seller: means Avon Group Manufacturing Limited (registered in England and Wales under number 01562118)
- Quotation: means the form setting out the price, quantity, specification and quality of the Goods
- Writing: includes facsimile, e-mail and comparable means of communication
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4 Where there is any conflict between the rights and duties and obligations of the parties as set out in such definition and those set out in this Agreement then the provisions of this Agreement shall prevail.
2. BASIS OF THE SALE
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written Quotation of the Seller which is accepted by the Buyer, or any written 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.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representative of the Buyer and a Director of the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representation 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.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 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.
3. ORDERS AND SPECIFICATIONS
3.1 No order submitted by the Buyer shall be deemed to have been accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative.
3.2 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.
3.3 The quantity, quality and description of 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).
3.4 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, costs 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.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6 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 against all loss (including loss of profits), costs (including loss of all labour and materials used), damages, charges and expenses incurred by the Sellers as a result of cancellation.
4. PRICE OF THE GOODS
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list shall apply. All prices quoted are valid for 30 days only or earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
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 foreign fluctuation, currency regulation, alteration of duties, significant increase in costs of labour, materials or other costs of manufacture), any change in delivery date, 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.
4.3 Except as otherwise stated under the terms of any Quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an Ex Works basis, and where the Seller agrees to deliver the goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance except for the Seller’s standard packaging.
4.4 The price is exclusive of any applicable value added tax and the cost of any certificate of conformity supplied, which the Buyer shall be additionally liable to pay the Seller.
4.5 The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the goods, in which event the Seller shall be entitled to invoice the buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) on the 28th day of the month following the Seller’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will only be issued upon request.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:-
5.3.1 Cancel the contract, suspend any further deliveries and stop any Goods in transit;
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); and
5.3.3 Charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 8% per annum above the base rate of Barclays Bank Plc from time to time, until payment is made in full.
6.1 Delivery of the Goods shall be made by the Buyer collecting the goods at the Sellers 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, by the Seller delivering the Goods to that place provided that, if the Buyer shall not have received the Goods within 14 days of the Seller’s advice note, the Buyer shall immediately inform the Seller.
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 in Writing by the Seller. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 The Seller reserves the right to deliver orders in part or in whole. 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.
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.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
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.
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:-
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;
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.
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:-
7.2.1 The Goods; and
7.2.2 All other goods agreed to be sold by the Seller to the Buyer for which payment is then due. 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 it’s 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.
7.3 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 or any third party where the Goods are stored and repossess the Goods.
7.4 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 payable.
8. WARRANTIES AND LIABILITY
8.1 The Seller warrants that the Goods comply with Ts16949.
8.2 The above warranty is given by the Seller subject to the following conditions
8.2.1 The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
8.2.2 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval;
8.2.3 Any failure by the Buyer to comply with these Conditions shall render void any claim which the Buyer might otherwise have against the Seller;
8.2.4 The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.2.5 The above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.3 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.
8.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified by the Buyer within 3 days from the date of receipt of the Goods. If 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 defects or failure, and the buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.5 When 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 or repair the Goods (or the part in question) free of charge, or at the Seller’s sole 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.
8.6 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 or profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and 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.
8.7 While the Seller will on request endeavour to provide technical advice and assistance concerning the Goods, all such technical advice or assistance is given gratis and the Seller assumes no obligation or liability for advice or assistance given.
8.8 No express or implied warranty is given by the Seller in respect of the service life of the Goods supplied nor that they are suitable for a particular purpose or for use under any specific conditions notwithstanding that such purpose or conditions may be known or made known to the Seller.
8.9 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, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party) shall be regarded as causes beyond the Seller’s reasonable control.
9. INSOLVENCY OF BUYER
9.1 Orders accepted by the Seller shall not be cancelled except with the Seller’s consent in Writing and will be subject to a cancellation charge.
9.2 If the Buyer shall make default in or commit a breach of the Contract, or of any other of his obligations to the Seller, either on this contract or any others, the Seller shall have the right forthwith to determine any contract then subsisting.
9.3 This clause applies if:
9.3.1 The Buyer makes any voluntary arrangement with it’s creditors or becomes subject to an administrative order (or being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
9.3.2 An encumbrancer takes possession of, or a receiver is appointed in relation to, any of the property or assets of the Buyer; or
9.3.3 The Buyer ceases, or threatens to cease, to carry on business; or
9.3.4 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.
9.4 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.
10. COPYRIGHT AND CONFIDENTIALITY
The copyright in all the Seller’s documents including drawings and sketches furnished by the Seller to the Buyer for the purposes of this Contract, shall at all times remain vested in the Seller and neither they nor their contents shall be used for any purposes other than that for which they were furnished without the Seller’s express written consent.
11.1 Any special moulds or tools shall remain the property of the Seller notwithstanding that some charge or part charge may be made and included on the Seller’s invoice for the Goods
11.2 The Seller shall not be liable to the Buyer in any manner whatsoever for any failure or delay in performing it’s obligations under the Contract due to force majeure which expression for the purposes of these Conditions means any cause beyond the reasonable control of the Seller which for the avoidance of doubt and without prejudice to the generality of the foregoing shall include governmental actions, war, riots, civil commotion, fire, flood, epidemic, labour disputes involving the work force or any part thereof of the party in question, restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials, currency restrictions and Acts of God.
11.3 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at it’s registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.4 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.
11.5 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.
11.6 The Buyer will if requested by the Seller provide two satisfactory written trade references, and one banker’s reference.
11.7 Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of the Law Society.
11.8 Prices and other information contained in the price lists and catalogues are not intended to be part of any contract or agreement.
11.9 The Contract shall be governed by the laws of England and Wales and the parties agree to submit to the non-exclusive jurisdiction of the English Courts.