6 - 21. Standard Terms of Trade - NON-BROKERAGE GOODS
- 6. Variations
All Goods are subject at any time to alteration, amendment or modification in design or specification by the Sellers without notice and the Customer shall accept the Goods so changed in fulfilment of the contract. No variation shall vitiate the contract. Provided any such variation or amendment does not substantially affect the purchase price of the Goods or their quality an order which has been accepted by the Seller may not be varied or cancelled by the Buyer except with the Sellers consent in writing. - 7. Passing of Property and Risk
7.1. The Goods shall be at the Customer’s risk as from Delivery.
7.2. Even if Delivery is made the property in the Goods shall not pass from the Seller until:
(a) the Customer has paid the Price plus VAT in full; and
(b) no other sums shall be due from the Customer to the Seller.
7.3. Until property in the Goods passes to the Buyer in accordance with clause 7.2 the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller. The Buyer will store the Goods (at no cost to the Seller) separately from all the Goods in its possession and marked in such a way that they are clearly identified as the Seller’s property.
7.4. The Seller shall be entitled to recover the Price (plus VAT) even though the property in any of the Goods has not passed from the Seller.
7.5. The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall become immediately payable.
7.6. The Buyer will insure and keep insured the Goods to the full Price against ‘all risks’ to the reasonable satisfaction of the Seller until the date that property in the Goods passes from the Seller, and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
7.7.The Buyer shall promptly deliver the prescribed particulars of this contract to the Companies Registrar in accordance with the Companies Act 1985 Part XII as amended by the Companies Act 1989. Without prejudice to the other rights of the Seller, if the Buyer. - 8. Price and Payment
8.1. Payment of the Price, VAT and Delivery charge shall be due the date of the Seller’s Invoice.
8.2. The Price of the Goods shall be the price stipulated in the Seller’s Invoice.
8.3. The Price is exclusive of VAT which shall be due at the rate ruling on the date of VAT Invoice.
8.4. Payments made under these terms of trade shall be made without deductions (including taxes or charges). If the applicable law requires any tax or charge to be deducted before payment, the amount due under these terms of trade shall be increased so that the payment made will equal the amount due to the Seller as if no such tax or charge had been imposed.
8.5. If between the date of the acceptance of the order and the date of Delivery of the Goods there shall be an increase in the cost of labour and/or materials used by the Seller in the manufacture/distribution of the Goods under the contract and/or any increase in the current wholesale and/or retail price of any of the contract Goods which may not be manufactured by the Seller the price payable by the Buyer or Consumer shall be increased correspondingly PROVIDED ALWAYS that if the increase exceeds 10% the Customer shall have the right (provided it is exercised within 7 days of receipt of the Seller’s revised Invoice) to cancel the order for the Goods
8.6 Delivery charges are as per the Sellers Delivery charge price list current at the date of Delivery; expedited deliveries at additional charge. - 9. Overseas Sales Only
9.1. The Customer shall within 21 days open an irrevocable letter of credit with a bank to be confirmed in favour of Lloyds Bank Plc payable 30 days at sight against production of a commercial invoice for the Goods and a clean on board bill of lading for the Goods.
9.2. Any sum due under these terms of trade not expressed in sterling shall be converted into sterling at the official rate of exchange in London at the close of business on the last day of the calendar month during which the Goods were delivered. - 10. Interest
10.1. Interest on overdue Invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 2% above Lloyds Bank Plc base rate from time to time in force and shall accrue at such a rate after as well as before any judgment.
10.2. If Clause 10.1 is for any reason unenforceable, or if a higher figure is produced by using the following formula, then, the Seller shall be entitled to interest on late payment equivalent to the interest permissible under the late payment of Commercial Debts (interest) Act 1998. - 11. No Set Off
The Customer may not withhold payment of any Invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Customer may have or allege to have or for any reason. - 12. Delivery
12.1. Any time or date named by the Seller for Delivery is given as an intended or estimate date only and the Seller shall not be liable to make good any damage or loss which arises either directly or indirectly out of delay in Delivery nor shall a Customer be entitled to reject Goods by reason of delay in Delivery. If the Customer does not take Delivery of any Goods within 28 days after being notified in writing that they are ready for Delivery then, without limiting any other right or remedy, the Seller shall be paid a reasonable rate for storage and if no storage space is available at the Sellers premises then the Seller shall be at liberty to arrange for storage elsewhere at the expense of the Customer as the case may be.
12.2. If the Customer does not take Delivery of any Goods within 28 days after being so notified the Seller shall have the option either:
i) To treat the contract as repudiated by the Customer; or
ii) To treat the risk in the Goods having passed to the Customer and shall then notify the Customer of the exercise of this option. - 13. Acceptance
13.1. Unless the Customer agrees with the Seller a different time period then the Customer shall inspect the Goods immediately on Delivery.
13.2. The Customer agrees to check the Goods when delivered and if requested to sign a Delivery Receipt.
13.3. If the Customer seeks to reject the Goods he must within 3 days of Delivery give notice in writing to the Seller of any matter or thing by reason of which he alleges that the Goods are not in accordance with the contract or of unsatisfactory quality.
13.4. The Customer agrees that 3 days from Delivery is a reasonable period for him to check that the Goods with the contract for the purposes of The Act and give notice to the Seller under 13.3.
13.5. If the Customer fails to give such notice the Goods shall be deemed to be in accordance with the contract and the Customer shall be deemed to have accepted the Goods. - 14. Force Majeure
Neither party shall be liable for any default due to any act of God, war, strike, lockout, industrial action, fire, flood, drought, tempest or other event beyond the reasonable control of the Seller which shall include the effect of labour disputes (if any) in the Sellers business. - 15. Severance
If any provision of these terms of trade shall be prohibited by law or adjudged by a court to be unlawful, void or unenforceable such provision shall to the extent required be severed from these terms of trade and rendered ineffective as far as possible without modifying the remaining provisions of these terms of trade and shall not in any way affect any other circumstances of or the validity or enforcement of these terms of trade. - 16. No Waiver
Any waiver by the Seller of any breach of any of the obligations of the Customer under these terms of trade or otherwise shall not be a waiver of any continuing breach or of any other breach of any of those obligations. - 17. Arbitration
Any dispute under or arising out of these terms of trade shall be referred to a single arbitrator in accordance with the provisions of the Arbitration Act 1996. - 18. Jurisdiction and Choice of Law
18.1. This contract is subject to the law of England and Wales.
18.2. The Seller and the Customer (subject to clause 17) submit to the exclusive jurisdiction of the courts of England and Wales. - 19. Exclusions and Limited Guarantee
19.1. No employee or officer of Ours has authority to give their opinion on the suitability of Goods for a particular purpose.
19.2. No employee of the Seller has power to waive any terms of this Agreement unless confirmed in writing by the Sellers Managing Director.
19.3. Unless the Seller and the Buyer agree otherwise in writing any liability of the Seller direct indirect consequential in contract or in tort is limited to the cost of the Goods.
19.4. Under these terms of trade no expression or opinion express or implied is given by the Seller in respect of the fitness of the Goods ordered by the Buyer for any particular purpose and the Buyer and Seller agree that at no stage shall the Buyer be entitled to rely upon the skill or expertise of the Seller or his agent in the selecting of the Goods.
19.5. Our obligation to you is limited to the manufacturers warranty only. - 20. Repairs and Maintenance Work
20.1. Subject to clause 21.2. below where We repair service or maintain equipment we do so in accordance with the B.M.I.F Terms current at the time of our invoice for that work (a copy of which terms is available on request).
20.2. All work is warranted for 90 days (parts and labour) and is conditional on the Customers proper use of the equipment during the warranty period. - 21. Third Party Rights
It is agreed that apart from the right of a Customer to sue an Owner direct, these terms do not confer any benefit on any third party.
