Goods and Products supply
1. Interpretation
2. In these Terms:
"BUYER"
means the person who accepts the Seller's quotation for the sale
of the Goods or whose order for the Goods is accepted by the Seller;
"GOODS"
means the goods (including any installment of the goods or any parts
for them) which the Seller is to supply in accordance with these
Terms;
"SELLER"
means AL Challis Ltd (registered in England under number 4518956);
"CONTRACT"
means the contract for the sale and purchase of the Goods;
"TERMS"
means the standard terms of sale set out in this document and (unless
the context otherwise requires) includes any special terms agreed
in Writing between the Buyer and the Seller;
"WRITING",
and any similar expression, included facsimile transmission and
comparable means of communication including electronic mail.
3. A reference in these Terms to a provision of a statute shall
be construed as a reference to that provision as amended, re-enacted
or extended at the relevant time.
4. The headings in these Terms are for convenience only and shall
not affect their interpretation.
5. Basis of the sale
6. The Seller shall sell and the Buyer shall purchase the Goods
in accordance with the Seller's Written quotation (if accepted by
the Buyer), or the Buyer's Written order (if accepted by the Seller),
subject in either case to these Terms, which shall govern the Contract
to the exclusion of any other terms 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.
7. No variation to these Terms shall be binding unless agreed in
Writing between the authorised representatives of the Buyer and
the Seller.
8. The Seller's employees or agents are not authorised to make any
representations concerning the Goods unless confirmed by the Seller
in Writing. In entering into the Contract the Buyer acknowledges
that it does not rely on any such representations which are not
so confirmed, but nothing in these Terms affects the liability of
either party for fraudulent misrepresentation.
9. 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 on 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.
10. 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.
11. Orders and specifications
12. No order submitted by the Buyer shall be deemed to be accepted
by the Seller unless and until confirmed by the Seller's authorised
representative.
13. 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.
14. The quantity, quality and description of the Goods and any specification
for them shall be as set out in the Seller's quotation (if accepted
by the Buyer) or the Buyer's order (if accepted by the Seller).
15. 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.
16. The Seller reserves the right to make any changes in the specification
of the Goods which are required to conform with any applicable statutory
or E.U. requirements or, where the Goods are to be supplied to the
Seller's specification, which do not materially affect their quality
or performance.
17. No order which has been accepted by the Seller may be cancelled
by the Buyer except with the agreement in Writing of the Seller
and on terms that the Buyer shall indemnify the Seller in full against
all loss (including loss of profit), costs (including the cost of
all labour and materials used), damages, charges and expenses incurred
by the Seller as a result of cancellation.
18. Price of the goods
19. 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. All prices quoted are valid
for 30 days only or until earlier acceptance by the Buyer, after
which time they may be altered by the Seller without giving notice
to the Buyer.
20. The Seller reserves the right, by giving Written 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 alteration of duties, significant increase in the
costs of labour, materials or other costs of manufacture), any change
in delivery dates, quantities or specifications for the Goods which
is requested by the Buyer, or any delay caused by any instructions
of the Buyer or failure of the Buyer to give the Seller adequate
information or instructions.
21. Except as otherwise stated in the Seller's Written 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.
22. The price is exclusive of any applicable value added tax, which
the Buyer shall be additionally liable to pay to the Seller.
23. Terms of payment
24. Terms are stricly payment by proforma invoice with the first
order, after which the Buyer may apply to the seller for an account
or credit terms, acceptance of which is at the discretion of the
Seller.
25. Once an account or credit terms have been agreed in writing
the Buyer shall pay the price of the Goods (less any discount to
which the Buyer is entitled, but without any other deduction) within
30 days of the date of the Seller's invoice, and the Seller shall
be entitled to recover the price, 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 be issued only on request.
26. If the Buyer fails to make any payment on the due date then,
without limiting any other right or remedy available to the Seller,
the Seller may:
27.cancel the contract or suspend any further deliveries to the
Buyer;
28.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
29.charge the Buyer interest (both before and after any judgment)
on the amount unpaid, at the rate of 4 per cent per annum above
HSBC plc Bank base rate from time to time, until payment in full
is made (a part of a month being treated as a full month for the
purpose of calculating interest).
30. Delivery
31. Delivery of the Goods shall be made by the Buyer collecting
the Goods at the Seller's premises at any time after the Seller
has notified the Buyer that the Goods are ready for collection or,
if some other place for delivery is agreed by the Seller, by the
Seller delivering the Goods to that place.
32. 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 however caused. Time for delivery shall not be of the
essence of the Contract unless previously agreed by the Seller in
Writing. The Goods may be delivered by the Seller in advance of
the quoted delivery date on giving reasonable notice to the Buyer.
33. Where the Goods are to be delivered in installments, each delivery
shall constitute a separate contract and failure by the Seller to
deliver any one or more of the installments in accordance with these
Terms or any claim by the Buyer in respect of any one or more installments
shall not entitle the Buyer to treat the Contract as a whole as
repudiated.
34. If the Seller fails to deliver the Goods (or any installment)
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.
35. 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
limiting any other right or remedy available to the Seller, the
Seller may:
36. store the Goods until actual delivery and charge the Buyer for
the reasonable costs (including insurance) of storage; or
37. 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.
38. Risk and property
39. Risk of damage to or loss of the Goods shall pass to the Buyer:
40. in the case of Goods to be delivered at the Seller's premises,
at the time when the Seller notifies the Buyer that the Goods are
available for collection; or
41. 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.
42. Notwithstanding delivery and the passing of risk in the Goods,
or any other provision of these Terms, the property in the Goods
shall not pass to the Buyer until the Seller has received in cash
or cleared funds payment in full of the price of the Goods and all
other goods agreed to be sold by the Seller to the Buyer for which
payment is then due.
43. 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, but the Buyer may resell or
use the Goods in the ordinary course of its business.
44. Until such time as the property in the Goods passes to the Buyer
(and provided the Goods are still in existence and have not been
resold), the Seller may at any time require the Buyer to deliver
up the Goods to the Seller and, if the Buyer fails to do so forthwith,
enter on any premises of the Buyer or any third party where the
Goods are stored and repossess the Goods.
45. 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 limiting any other
right or remedy of the Seller) forthwith become due and payable.
46. Warranties and liability
47. Subject to the following provisions the Seller warrants that
the Goods will correspond with their specification at the time of
delivery and will be free from defects in material and workmanship
for a period of 12 months from delivery.
48. The above warranty is given by the Seller subject to the following
conditions:
49. 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;
50. 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;
51. 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;
52. 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.
53. Subject as expressly provided in these Terms, 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.
54. Where the Goods are sold under a consumer transaction (as defined
by the Consumer Transactions (Restrictions on Statements) Order
1976) the statutory rights of the Buyer are not affected by these
Terms.
55. A 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
to the Seller within seven days from the date of delivery or (where
the defect or failure was not apparent on reasonable inspection)
within a reasonable time after discovery of the defect or failure.
If delivery is not refused, and the Buyer does not notify the Seller
accordingly, the Buyer shall not be entitled to reject the Goods
and the Seller shall have no liability for such defect or failure,
and the Buyer shall be bound to pay the price as if the Goods had
been delivered in accordance with the Contract.
56. Where a valid claim in respect of any of the Goods which is
based on a defect in the quality or condition of the Goods or their
failure to meet specification is notified to the Seller in accordance
with these Terms, the Seller may replace 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), in which case the Seller shall have no further liability
to the Buyer.
57. Except in respect of death or personal injury caused by the
Seller's negligence, or liability for defective products under the
Consumer Protection Act 1987, the Seller shall not be liable to
the Buyer by reason of any representation (unless fraudulent), or
any implied warranty, condition or other term, or any duty at common
law, or under the express terms of the Contract, for loss of profit
or for any indirect, special or consequential loss or damage, costs,
expenses or other claims for compensation whatsoever (whether caused
by the negligence of the Seller, its employees or agents or otherwise)
which arise out of or in connection with the supply of the Goods
(including any delay in supplying or any failure to supply the Goods
in accordance with the Contract or at all) or their use or resale
by the Buyer, and the entire liability of the Seller under or in
connection with the Contract shall not exceed the price of the Goods,
except as expressly provided in these Terms.
58. 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 limiting the foregoing,
the following shall be regarded as causes beyond the Seller's reasonable
control:
59. Act of God, explosion, flood, tempest, fire or accident;
60. war or threat of war, sabotage, insurrection, civil disturbance
or requisition;
61. acts, restrictions, regulations, bye?laws, prohibitions or measures
of any kind on the part of any governmental, parliamentary or local
authority;
62. import or export regulations or embargoes;
63. strikes, lock-outs or other industrial actions or trade disputes
(whether involving employees of the Seller or of a third party);
64. difficulties in obtaining raw materials, labour, fuel, parts
or machinery;
65. power failure or breakdown in machinery.
66. Indemnity
67. If a claim is made against the Buyer that the Goods infringe
or that their use or resale infringes the patent, copyright, design,
trade mark or other industrial or intellectual property rights of
any other person, then unless the claim arises from the use of a
drawing, design or specification supplied by the Buyer, the Seller
shall indemnify the Buyer against all loss, damages, costs and expenses
awarded against or incurred by the Buyer in connection with the
claim, or paid or agreed to be paid by the Buyer in settlement of
the claim, provided that:
68. the Seller is given full control of any proceedings or negotiations
in connection with the claim;
69. the Buyer shall give the Seller all reasonable assistance for
the purposes of any such proceedings or negotiations;
70. except pursuant to a final award, the Buyer shall not pay or
accept the claim, or compromise any such proceedings without the
consent of the Seller (which shall not be unreasonably withheld);
71. the Buyer shall do nothing which would or might vitiate any
policy of insurance or insurance cover which the Buyer may have
in relation to such infringement, and this indemnity shall not apply
to the extent that the Buyer recovers any sums under any such policy
or cover (which the Buyer shall use its best endeavors to do);
72. the Seller shall be entitled to the benefit of, and the Buyer
shall accordingly account to the Seller for, all damages and costs
(if any) awarded in favour of the Buyer which are payable by, or
agreed with the consent of the Buyer (which consent shall not be
unreasonably withheld) to be paid by, any other party in respect
of any such claim; and
73. without limiting any duty of the Buyer at common law, the Seller
may require the Buyer to take such steps as the Seller may reasonably
require to mitigate or reduce any such loss, damages, costs or expenses
for which the Seller is liable to indemnify the Buyer under this
clause.
74. Insolvency of buyer
75.
This Clause Applies If:
76. the Buyer makes a voluntary arrangement with its creditors or
(being an individual or firm) becomes bankrupt or (being a company)
becomes subject to an administration order or goes into liquidation
(otherwise than for the purposes of amalgamation or reconstruction);
or
77. an encumbrancer takes possession, or a receiver is appointed,
of any of the property or assets of the Buyer; or
78. the Buyer ceases, or threatens to cease, to carry on business;
or
79. 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.
80. If this clause applies then, without limiting any other right
or remedy available to the Seller, the Seller may 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.
81. General
82. A notice required or permitted to be given by either party to
the other under these Terms shall be in Writing addressed to that
other party at its 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.
83. 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.
84. If any provision of the Contract is held by a court or other
competent authority to be invalid or unenforceable in whole or in
part the validity of the other provisions of the Contract and the
remainder of the provision in question shall not be affected.
85. The Contract shall be
governed by the laws of England, and the Buyer agrees to submit
to the non-exclusive jurisdiction of the English courts.
AL Challis Ltd © 2003
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