1. Definitions
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Associate: means any associated company as defined by section 416 of the Income and Corporation Taxes Act 1988 or any subsidiary or holding company as defined by section 736 of the Companies Act 1985.
Buyer: The person, firm or company who purchases the Goods from the Company.
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these conditions.
Delivery Point: the place where delivery of the Goods is to take place under condition.
Director: means a director of the Company.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
2. Conditions applicable
2.1 These Conditions shall apply to all contracts for the sale of Goods or the supply of services by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the buyer may purport to apply under any purchase order confirmation of order or similar document
2.2 All orders for Goods or requests for Services shall be deemed to be an offer by the buyer to purchase Goods or Services according to these conditions
2.3 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller
3. The price and payment
3.1 The price shall be the Seller’s quoted price or where no price has been quoted (or a quoted price is no longer valid) the price listed in the Seller’s trade price list current at the date of acceptance of the order. In all cases, this price is exclusive of VAT (unless otherwise stated) which shall be due at the correct tax rate at the invoice date.
3.2 Full payment of the price and VAT shall be made under the credit terms agreed and set out in the buyer’s account.
3.3 Interest on overdue sums shall accrue from the date of delivery or attempted delivery of the Goods or the date of performance or attempted performance of the Services from day to day until the date of payment at a rate of two per cent per annum above the base rate of Bank of Scotland.
3.4 The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods or Services to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller.
3.5 The Seller reserves the right to charge to the Buyer in addition to the price of the Goods the cost of barrels and returnable containers but full credit will be given to the Buyer provided they are returned undamaged to the Seller within a reasonable period and providing the container is of such type that it is in current use by the Seller
3.6 If the Buyer fails to make any payment to the Seller on the due date then without prejudice to any other rights or remedy available to the Seller the Seller shall be entitled to
3.6.1 cancel the contract or suspend any further deliveries to the Buyer
3.6.2 appropriate any payment made by the Buyer to the Seller to such of the Goods
3.6.3 take whatever proceedings the Seller or its advisers consider appropriate to recover all amounts payable by the Buyer to the Seller notwithstanding that some amounts may not be due under the provisions of clause 3.2 of these Conditions
3.7. The Seller may set off against the price of Goods or Services (including any applicable VAT payable) amounts due from the Seller to the Buyer whether under the applicable contract of sale or supply otherwise
4. The Goods
4.1 The quantity and description of the Goods shall be as set out in the Seller’s quotation or where no quotation has been given any order of the Buyer which is accepted by the Seller
4.2 If a product ordered by the Buyer is not available then the Seller shall be entitled to supply a product which is in the reasonable opinion of the Seller comparable to the product ordered by the Buyer
5. Warranties and liabilities
5.1 The Seller warrants that the Goods or Services will at the time of delivery or performance (as the case may be) correspond to the specification given by the Seller. Except where the Buyer is dealing as a consumer (as defined in the Unfair Contract Terms Act 1977 Section 12) all other warranties conditions or terms relating to fitness for purpose merchantability or condition of the Goods or skill in the performance of the Services and whether implied by statute or common law or otherwise are excluded
5.2 The Seller may from time to time make changes in the specification of the Goods or Services which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the Goods or the effect of the Services
5.3 The formula of any of the custom goods (including the copyright design right or other intellectual property) shall be the property of the Seller unless the original formula or formulae was supplied by the Buyer.
5.4 The warranty in clause
5.1 is given by the Seller subject to the following conditions
5.4.1 The Seller shall be under no liability in respect of any defect in the Goods or Services arising from any specification supplied by the Buyer
5.4.2 the Seller shall be under no liability in respect of any defect in the Goods after the expiry of a proper period from delivery of the Goods having regard to the nature and composition of the Goods
5.4.3 the Seller shall be under no liability in respect of any defect arising from failure to follow the Seller’s instructions (whether oral or in writing) misuse alteration or incorrect storage of the Goods without the Seller’s approval
5.4.4 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 or Services has not been paid by the due date for payment
5.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or the quality of the Services or their failure to correspond with specification shall (whether or not delivery is refused or performance halted by the Buyer) be notified to the Seller as soon as reasonably practicable after the date of delivery, refusal of delivery, or performance or (where the defect or failure was not apparent on reasonable inspection) as soon as reasonably practicable after discovery of the defect or failure and confirmed in writing within 24 hours. If delivery is not refused or performance halted and the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject the Goods or the Services 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 or the Services supplied under the contract. If notification of a defect is verbal then this shall be confirmed in writing by the Buyer as soon as reasonably practicable
5.6 Where any valid claim in respect of any of the Goods or Services which is based on any defect in the quality or condition of the Goods or quality of the Services or their failure to meet specification is notified to the Seller under these Conditions the Seller shall be entitled to replace the Goods (or the part in question) or perform the Services for a second time free of charge or at the Seller’s sole discretion refund to the Buyer the price of the Goods or Services (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer
5.7 Save where the Seller has effected insurance cover and is entitled to receive the proceeds of such insurance and except in respect of death or personal injury caused by the Seller’s negligence the Seller shall not be liable to the Buyer because 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 of profit or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer or the supply of the Services to the Buyer except as expressly provided in these conditions
5.8 The Seller shall not be liable to the Buyer or be deemed to be in breach of the contract because of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods or Services if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control
5.8.1 act of God explosion flood tempest fire or accident
5.8.2 war or threat of war sabotage insurrection civil disturbance or requisition
5.8.3 acts restrictions regulations bye-laws prohibitions or measures of any kind on the part of any governmental parliamentary or local authority
5.8.4 import or export regulations or embargoes
5.8.5 strikes lock-outs or other industrial action or trade disputes (whether involving employees of the Seller or of a third party)
5.8.6 difficulties in obtaining raw materials labour fuel parts or machinery
5.8.7 power failure or breakdown in machinery
6. Delivery of the Goods
6.1 Unless it is agreed between the parties that the Buyer shall collect the Goods delivery of the Goods shall be made to the Buyer’s address within a reasonable period of the date specified for delivery by the Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery
6.2 Any dates specified 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. The Goods may be delivered by the Seller in advance of the specified delivery date upon giving reasonable notice to the Buyer
6.3 Where delivery of the Goods is to be made by the Seller in bulk the Seller reserves the right to deliver up to ten per cent more or ten per cent less than the quantity ordered and the price of the Goods shall be adjusted accordingly and the quantity so delivered shall be deemed to be the quantity ordered
6.4 Where the Goods are to be delivered in instalments or the Services supplied at intervals each delivery or supply of Services shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments or supply the Services under these Conditions or any claim by the Buyer in respect of any one or more instalments or any supply of the Services shall not entitle the Buyer to treat the contract as a whole as repudiated
6.5 If the Seller fails to deliver the goods or perform the Services 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 or services to replace those not delivered or performed over the price of the Goods or Services
6.6 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 because of the Seller’s fault) then without prejudice to any other right or remedy available to the Seller the Seller may
6.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage or
6.6.2 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. Title and Risk
7.1 The Goods shall be at the Buyer’s risk as from delivery
7.2 Despite delivery having been made property in the Goods shall not pass from the Seller until
7.2.1 the Buyer shall have paid the price of the Goods plus VAT in full and
7.2.2 no other sums whatsoever shall be due from the Buyer to the Seller
7.3 Until property in the Goods passes to the Buyer following clause 7.2 the Buyer shall hold the Goods on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are identified as the Seller’s property
7.4 Notwithstanding that the Goods remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s behalf and the Buyer shall deal as principal when making such sales or dealing. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money
7.5 The Seller shall be entitled to recover the price of the Goods plus VAT notwithstanding that property in any of the Goods has not passed from the Seller
7.6 Until property in the Goods passes from the Seller the Buyer shall upon request deliver up such of the Goods as have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On the making of such a request, the rights of the Buyer under clause 7.4 shall cease
7.7 The Buyer shall not pledge or in any way charge by way of security for any indebtedness of 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 forthwith become due and payable
7.8 The Buyer shall insure and keep insured the Goods to the full price of the Goods 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
7.9 If the Buyer is a company then it shall promptly deliver the prescribed particulars of this contract to the Registrar under the Companies Act 1985 Part XII as amended. 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
8. Cancellation
8.1 The Seller may cancel this contract at any time before the Goods are delivered or the Services performed by giving written notice. On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect of the price of the Goods or Services. The Seller shall not be liable for any loss or damage whatever arising from such cancellation
8.2 Unless the Goods have been formulated, packed or branded specifically for the Buyer (other than in the normal course of the Seller’s usual trade which without prejudice to the generality of the foregoing shall also mean goods prepared in unusually large quantity as to the Buyer’s specification) at the Buyer’s request then the Buyer may cancel this contract at any time before the Goods are delivered or Services performed by giving written notice. On giving such written notice
8.2.1 the Seller shall cease to be bound to deliver or perform and the Buyer shall cease to be bound to receive delivery or supply of any further Goods or Services
8.2.2 the Buyer shall cease to be bound to pay that part of the price which relates to Goods which have not been delivered or Services which have not been performed
8.2.3 the Buyer shall not be liable for any loss or damage arising from such cancellation
9. Proper law of contract
9.1 This contract is subject to the law of England and Wales
9.2 In the event of a dispute arising between the parties as to the true construction of the contract and/or the rights and obligations of any of them hereunder such dispute shall be referred to a single arbitrator in the United Kingdom to be agreed between the parties in writing and in default of agreement appointed by the President for the time being of the Law Society of England and Wales according to the provisions of the Arbitration Acts 1950 to 1979 or any statutory re-enactment amendment or modification thereof and the decision of such arbitrator shall be final and binding on the parties who shall pay his costs in such proportions as are agreed between them or in default of agreement in equal shares
10. Equipment
10.1 subject to the terms of any written agreements between the Seller and the Buyer which are expressed to take precedence over these conditions if the Buyer fails within a reasonable period to order Goods or request Services from the Seller then any equipment loaned free of charge to the Buyer by the Seller shall be returnable to the Seller within seven days of a written demand from the Seller to the Buyer
10.2 Any equipment loaned free of charge to the Buyer by the Seller shall be used solely for the storage use or supply of Goods supplied by the Seller
10.3 Any equipment loaned to the Buyer by the Seller shall be
10.3.1 kept in proper conditions conducive to the correct storage of products for which it has been supplied
10.3.2 fully maintained and repaired by the Buyer and
10.3.3 fully insured with a reputable insurer against all risks by the Buyer who shall on demand from the Seller produce to the Seller the insurance policy
10.4 If the Buyer fails to deliver up to the Seller any equipment referred to in this clause then the Buyer hereby authorises the Seller to enter onto any premises owned or occupied by the Buyer on which the equipment resides expressly for the Seller to retake possession of the equipment.
10.5 If the Buyer wishes to part with possession of the equipment referred to in this clause to any third party then the Buyer shall first obtain the written authorisation of the Seller which authorisation if given shall be on the basis only that the third party acknowledges the rights of the Seller under this clause 10 and agrees to observe the provisions of 10.3
10.6 It shall be the responsibility of the Buyer to procure the acknowledgement and agreement of the third party referred to in clause 10.5 and any loss suffered by the Seller from the Buyer
11. Insolvency of Buyer
11.1 In this clause references to the Buyer shall be deemed to be references to the Buyer or Associates of the Buyer. This clause applies if
11.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for amalgamation or reconstruction) or
11.1.2 an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Buyer or
11.1.3 the Buyer ceases or threatens to cease to carry on business or
11.1.4 the Seller reasonably apprehends that any of the events mentioned above are about to occur with the Buyer, the buyer is notified accordingly.
11.2 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 or Services supplied but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary
12. Export terms
12.1 In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the contract is made. Unless the context otherwise requires any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions but if there is any conflict between the provisions of Incoterms and these Conditions the latter shall prevail
12.2 Where the Goods are supplied for export from the United Kingdom the provisions of this clause 12 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions
12.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon
12.4 Unless otherwise agreed in writing between the Buyer and the Seller the price agreed shall be for the Goods to be delivered at the Seller’s premises
12.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment or in respect of any damage during transit
12.6 Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a bank in the United Kingdom acceptable to the Seller or if the Seller has agreed in writing on or before acceptance of the Buyer’s order to waive this requirement by acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn on the Buyer payable 30 days (or such longer period agreed in writing between the Buyer and the Seller) after sighting to the order of the Seller at such branch of Bank of Scotland in England as may be specified in the bill of exchange
12.7 The Buyer undertakes not to offer the Goods for resale in or any other country notified by the Seller to the Buyer at or before the time the Buyer’s order is placed or to sell the Goods to any person if the Buyer knows or has reason to believe that the person intends to resell the Goods in any such country
13. Severance
If any provisions of these Conditions are 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 and shall remain in full force and effect.
