FORMATION OF CONTRACT
All sales are subject to these conditions as modified by the special terms overleaf or specifically agreed in writing. Any variation of these conditions in any document of the buyer is invalid and inapplicable unless prior express written acceptance of such variation has been given by the seller.
Quotations are not an offer.
All verbal or other acceptances of order not on the seller’s printed form of acknowledgement are deemed made subject to these conditions of sale.
The order, these conditions and any such special terms (together with the Contract”) represent the entire understanding and supersede any previous agreement between the seller and the buyer in relation to their subject matter.
No assurances given or terms discussed before order or arising from previous transactions shall take effect as part of this contract or as collateral warranty or contract nor shall they bind the seller in any other way unless repeated in the seller’s qu otation or set out clearly in the buyer’s written order.
No statement, description, information. warranty, condition or recommendation contained in any cata- logue, price list, advertisement or communication or made verbally by any of the agents or employees of the seller shall be construed to enlarge, vary or override in any way any of these conditions and the buyer acknowledges that it has not relied and does not rely on any such statement, description, information, warranty, condition or recommendation save as specifically confirmed in writing by the seller.
PRICES
The price payable for the goods shall, unless otherwise stated by the seller in writing and signed on its behalf and subject to this clause 2. be the list price of the seller current at the date of delivery of the goods and in the case of an order for delivery by instalments the price payable for each instalment shall be the selling price of the seller current at the date of delivery of such instalment. Unless otherwise expressly stated to be firm for a period the Seller’s prices are subject to variation to take account of variations in wages, materials or other costs since the date of the order. The seller accordingly reserves the right to adjust the invoice price after the price is quoted to reflect any increase or decrease in such costs after the price is quoted and the invoice price so adjusted shall be payable as if it were the original contract price.
Where goods are to be supplied otherwise than ex works prices are stated inclusive of carriage and/or insurance (where appropriate) to the works of the buyer if situated within the United Kingdom or to a United Kingdom port if for export although the seller reserves the right to charge the buyer such additional carriage charges as it may in its absolute discretion incur as a result of the particular circumstances of any contract with the buyer including for the doubt any additional charges incurred because the goods the subject of any contract are for export. The invoice prices shall accordingly be increased to reflect any such additional carriage charges, and the invoice price so adjusted shall be payable as if it were the original contract price. No reduction in price is allowed for delivery ex works of the seller.
The seller reserves the right to deliver goods within plus or minus ten per cent of the quantities stipulated in the contract and the contract price shall be adjusted in respect thereof by an amount (if any) notified to the buyer.
Value Added Tax or any like duty shall be payable on sales where appropriate in addition to the price of the standard prevailing at the date of invoice, and all other taxes, duties or imposts arising in connection with the sale.
The buyer agrees to pay in addition to the contract price for any loss or extra cost incurred by the seller through the buyer’s instructions or failure to price information or instructions or through failure or delay in taking delivery or through any neglect or default on the part of the buyer. its servants, agents or em- ployees.
TERMS OF PAYMENT
Our payment terms, as a condition of sale supersedes any buyer’s terms.
If the goods are delivered in instalments the seller shall be entitled to invoice in respect of each instalment and payment shall be due in respect of each instalment delivered notwithstanding any other non-delivery or other default on the part of the seller.
If upon the terms applicable to any order the price shall be payable by instalments or if the buyer has agreed to take specified quantities of goods at specified times a default by the buyer in the payment of any due instalment or the failure to give delivery instructions in respect of any quantity of undelivered goods shall cause the whole of the balance of the price to become due forthwith.
The price of the goods shall be due in full to the seller in accordance with the terms of the Contract and the buyer shall not be entitled to exercise any set-off. lien or any other similar right or claim.
In addition to its other remedies the seller reserves the right to charge interest on delayed payments from the due date on a day to day basis at a rate not exceeding 5 per cent per annum above the base lending rate of The Royal Bank of Scotland plc from time to time in force.
If the buyer fails to make due payment of any sum due under the Contract, the seller shall be entitled to treat the Contract as repudiated by the buyer. If the buyer neglects or refuses to pay for one or more instal- ments the seller shall be entitled to treat such neglects or refusal as a repudiation of the whole contract.
The seller shall have a general lien over all property of the buyer in the seller’s possession for the time being for all sums due from time to time under the contract.
DELIVERY
The period for delivery stated in the Contract within which the goods are intended to be delivered at the buyer’s works or at a United Kingdom port as the case may be and shall be calculated from the time of the receipt of the seller of the order, or from the receipt of all necessary information to enable the seller to manufacture or procure the manufacture of the goods, whichever shall be the later, and the buyer shall take delivery of the goods within that period.
All times or dates given for delivery of the goods are an estimate only, given in good faith, but without any responsibility on the part of the seller. Time shall not be of the essence of any contract nor shall the seller be under any liability for delay in delivery, whether occasioned by the negligence of the seller or any other circumstances whatsoever whether or not beyond the seller’s reasonable control unless other- wise expressly agreed in writing at or before the date of the order in which case the seller’s liability shall be limited to such liquidated damages as may be specifically agreed or before that date. The seller may deliver the goods in advance of any delivery time indicated by the seller upon giving reasonable notice to the buyer.
Where the goods are handed to a carrier for carriage to the buyer or to a United Kingdom port for export any such carrier shall be deemed to be the agent of the seller and not of the buyer for all purposes.
Where the goods are sold FOB the responsibility of the seller shall cease immediate the goods are placed on board ship and the seller shall be under no obligation to give the buyer the notice specified in section 32 (3) of the sale of Goods Act 1979.
No liability for non-delivery will attach to the seller unless claims to that effect are notified in writing by the buyer to the seller and to the carrier if the seller’s own vehicles have not been used to deliver the goods) within three days of the date of the invoice or if later the date on which delivery shall have been effected in accordance with condition 4 (a).
In the event of a valid claim for non-delivery, the seller undertakes to replace the goods but shall not be under any further or other liability to any person in connection with such non-delivery.
If for any reason the buyer is unable to accept delivery of the goods at the time when the goods are due and ready for delivery the seller may at its sole discretion without prejudice to its other rights store the goods at the risk of the buyer and take all reasonable steps to safeguard and insure them all at the cost of the buyer provided that the buyer shall be immediately informed thereof.
The seller shall not be liable for any damage to or deterioration of the goods in transit if the matter should have been apparent on a reasonable examination on delivery unless the seller receives notice thereof from the buyer within 14 days.
Where the buyer has rejected any of the goods or notified any damage the buyer shall, if requested to do so by the seller, return the goods to the seller within 14 days of such request
The production by the person taking delivery of the goods of the buyer’s copy of the order or of the seller’s invoice in respect of the goods shall be conclusive evidence that such person is duly authorised to take delivery of the goods.
If the buyer commits any breach of this condition 4 the seller shall be entitled to treat the Contract as repudiated. If the buyer neglects or refuses to take delivery of one or more instalments, the seller shall be entitled to treat such neglect or refusal as a repudiation of the whole Contract.
The buyer shall be deemed to have accepted the goods upon the seller’s acceptance or delivery note being signed on behalf of the buyer and given or sent to the buyer or if the buyer retains the goods for more than 14 days after delivery without intimating to the selling that it has rejected them.
MANUFACTURING VARIABLES
Where the buyer specifies colours or sizes such specifications shall be taken to include such variation as may be commercially reasonable.
Goods are sold in accordance with the seller’s current product specification and any advance sample shall be regarded only as an average representation of the specification concerned.
The seller reserves the right to make change in the specification of goods as necessary to comply with all applicable statutory or regulatory requirements.
PASSING OF TITLE AND RISK
From the time of delivery the goods shall be at the risk of the buyer who shall be solely responsible for their custody and maintenance as if he were the owner but unless otherwise agreed in writing (and notwithstand- ing actual delivery) the goods shall remain the property of the seller until the seller has received payment in full of all sums due under each and every current contract between the seller and the buyer including but not limited to Value Added Tax, interest owed or accrued and any other additional or incidental costs due and owing under such contract or until resale by the buyer in accordance with clause 6 (D) below who shall act as principal only. While in the ownership of the seller the buyer shall keep the goods separate and identifiable from all other goods in its possession and the buyer shall not remove, obscure or delete any mark placed on the goods by the seller which might enable the goods to be identified as the seller’s. Subject to the seller giving 24 hours’ notice the seller’s representatives shall be allowed to enter at all reasonable times upon any land or buildings on or in which the seller’s goods may be situated for the purpose of inspecting the way in which the goods are being kept. In the event of failure to pay the price in accordance with the contract the seller shall have the power to re-sell the goods after reasonable notice, such power being additional to any other power of sale arising by operation of law or implication or otherwise.
During such time as the property in any of the goods remains in the seller the buyer shall not pledge or in any way charge by way of security for any indebtedness any of the goods the property which remains in the company.
Goods which are held by the seller either at the buyer’s request or due to actions or default of the buyer after notification to the buyer that they are ready for delivery are held at the buyer’s risk.
During such time as the property in the goods remains in the seller the buyer in possession of the goods shall have the power to deal with and dispose of the goods in the normal course of its business as the company’s agent by way of bona fide sale at full market value.
The seller shall be entitled to repossess all or any of the goods upon the happening of any of the events specified in clause 12(B). For the purpose of repossessing any of the goods, the seller or its agent shall be entitled to enter upon any land or buildings on or which the goods may be or are reasonably thought by the seller to be situated and to remove any of the goods. All costs incurred by the seller or its agent in repossessing the goods shall be paid by the buyer on demand.
Nothing in this condition 6 shall confer on the buyer any right to return the goods or to refuse or delay payment.
INDEMNITY
The buyer shall indemnify the seller against all claims in respect of all loss, injury or damage sustained by a third party caused by the buyer’s negligence or default after delivery of the goods to the buyer.
The buyer shall also indemnify the seller against all claims for royalties or other payments in respect of patents, registered designs, trademarks, copyrights and other industrial or intellectual property rights of the Company of whatever nature in respect of the goods or other rights which may be claimed as a result of the goods having been made to or pursuant to a design or specification supplied by the buyer and shall indemnify the seller against all loss, damage, claims, expenses and costs in connection with infringement or alleged infringement of any patent, registered design or other right in the manufacture of goods to or pursuant to such design or specification or possession of any material or information or instruction sup- plied by the buyer in relation to the goods.
QUALITY, DESCRIPTION AND FITNESS FOR PURPOSE
The goods are warranted to be of satisfactory quality. If they show defects due to faulty materials and/or faulty workmanship the seller’s liability will be limited to crediting their value or replacing such goods provided written notice is received by the seller within thirty days of delivery or if the defect was not apparent, within thirty days of the date on which the defect appeared or ought reasonably to have been discoverable. This warranty is given in lieu of and excludes all other warranties or conditions of satisfac- tory quality and description whether express implied by statute or otherwise.
As the goods may be used for a multiplicity of purposes and in a multiplicity of ways over which the seller has no control, all conditions or warranties, express, implied by statute or otherwise, as to their fitness for any particular purposes are hereby excluded.
The implied terms in the Sale of Goods Act 1979 (as amended by the Sale and Supply of Goods Act 1994) are excluded in respect of buyers dealing otherwise than as Consumer, except the implied terms about title.
Save only as provided in these conditions the goods are not supplied with and the seller does not give any term, warranty. representation guarantee, condition or undertaking, whether express or implied, statutory or otherwise, and all of the same are excluded.
In the case of goods not of the seller’s manufacture the seller will pass on to the buyer any benefits ob- tainable under any Warranty given by the seller’s supplier provided that the goods have been accepted and paid for.
In the case of any claim under this paragraph the seller reserves the right at its sole discretion to replace the goods or to credit to the buyer, in full, the price paid by the buyer to the seller.
In order to exercise its rights under this paragraph. the buyer shall return the defective goods carriage paid to the seller’s works, if the seller subsequently rejects the buyer’s claim on the grounds that the goods are not defective, such goods will be returned to the buyer at the buyer’s expense and will also be subject to a handling charge equal to 10% of the value of the goods.
Nothing herein shall impose any liability on the seller in respect of any defect in the goods arising out of the acts, omissions, negligence or default of the buyer, its servants or agents including in particular but without prejudice to the generality of the foregoing, any failure by the buyer to comply with any recom- mendations of the seller us to storage and handling of the goods.
Where the goods are for delivery by instalment any defect in any instalment shall not be a ground for cancellation of the remaining instalments and the buyer shall be bound to accept delivery thereof.
CONSEQUENTIAL LOSS
Under no circumstances shall the seller be liable whether in contract or in tort for loss in revenue, profits or contracts or for any other consequential loss or damage arising directly or indirectly from the purchase, use application or storage of the goods.
TECHNICAL CO-OPERATION
Unless otherwise agreed in writing the seller is not to be liable contractually or otherwise in respect of any technical advice or assistance given before or after the formation of the contract.
TOOLS
Tools, artwork, printing and embossing rollers made for the manufacture of the goods to be supplied to the buyer remain the property of the seller even if the buyer has been charged with a sum for the cost of such items.
CANCELLATION
Save as provided in this clause, contracts or orders may not be cancelled except by agreement in writing of both parties and upon the payment to the seller of such amount as may be necessary to indemnify the seller against all loss resulting from the said cancellation.
If the buyer defaults in payment or commits a breach of the contract or of any of his obligations to the seller, or any distress or execution is levied upon the buyer’s property or on its assets, or if the buyer makes or offers or proposes to make any arrangement or composition with its creditors or has a receiver or administrative receiver appointed on commences winding-up proceedings, or any petition or an admin- istration order is presented, or is or becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 then the total balance due under the contract shall become due and payable and the period of credit allowed for the buyer under any other contract with the seller shall cease to apply and payment for all goods under such contract shall be or be deemed to have become due forthwith on delivery thereunder. In such circumstances the seller may notwithstanding any term of any relevant contract withhold delivery until all such payments have been made or until the buyer gives security which the seller considers adequate to secure all outstanding payments. Without prejudice to the provisions of this clause the seller may at its sole discretion rescind the contract and claim damages for any loss incurred as a result of the circumstances set out in this sub-clause and/or re-sell any or all relevant goods and/or appropriate any payment made by the buyer to any of such goods as the seller in its discretion decides.
FORCE MAJEURE
The seller shall be entitled to suspend the Contract and/or delay or cancel delivery or to reduce the amount de- livered if it is prevented from or hindered in or delayed in manufacturing, obtaining or delivering the goods by normal route(s) or means of delivery through any circumstances beyond its control including but not limited to strikes, lockouts, accidents, war, fire, reduction or unavailability of power al manufacturing plant, breakdown of plant machinery or shortage or unavailability of raw materials from normal sources of supply and the seller shall have no liability in relation to any failure by it to perform its obligations by reason of such prevention, hindrance or delay
EXPORTS
“Incoterms 2020” shall apply to all terms and conditions used in any agreement or contract covered by these conditions of sale.
GENERAL
No failure by the seller to enforce any of its rights under the Contract delay by the seller in enforcing any such rights, whether or not after knowledge of any breach by the buyer, shall constitute waiver thereof. Each of the rights and remedies conferred on the seller by these conditions shall be in addition to and without prejudice to any other right or remedy hereunder or otherwise.
Any notice under the Contract shall be given by letter or by facsimile transmission. Each letter shall be sent by pre-paid first class mail or delivered by hand in the case of the seller to its registered office and in the case of the buyer to its address specified in the order. Any letter so sent by mail still be deemed to be received on the second day (not including Saturdays, Sundays and Public Holidays) after posting.
These Conditions shall not exclude, restrict or limit any liability the exclusion, restriction or limitation of which is for the time being prohibited by legislation or any right or remedy in respect of any such liability.
Each of the exclusions, restrictions and limitations of the seller’s liability in these Conditions should be without prejudice to every other such exclusion restriction or limitation.
Each of the exclusions, restrictions and limitations of the seller’s liability in these Conditions shall be separate and several from every other such exclusion, restriction or limitation. If a court of competent jurisdiction finds any such exclusions, restrictions and limitations to be unenforceable to any extent the exclusions, restrictions and limitations shall save to such extent remain in full force and effect.
The Contract shall be personal to the buyer and the buyer shall not assign any of its rights under the Contract without the prior written consent of the seller.
PROPER LAW
The Contract shall in all respects be governed by English Law and the buyer shall submit to the jurisdiction of the Supreme Court of justice in England in respect of any matters which may arise in connection with the contract.