1.
DEFINITIONS
(1) the Seller means Trouw (U.K.) Limited and also where the context so permits its assigns and any sub-contractor for the said company.
(2) the Buyer means the person, firm or company who buy or agree to buy goods from the Seller whether directly or indirectly through an agent or factor who is acting for or instructed by or whose actions are ratified by such person firm or company.
(3) Goods means the articles or things which the Buyer agrees to buy from the Seller.
(4) Conditions means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing and signed on behalf of the Seller by a director or other person duly authorised by the Seller.
(5) Sellers Premises means the premises mentioned in the sellers quotation or other contractual document or if not so mentioned means the Sellers works at WINCHAM NORTHWICH CHESHIRE CW9 6DF.
2. CONDITIONS APPLICABLE
(1) These Conditions shall apply to all contracts for the sale of goods 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) All orders for Goods shall be deemed to be an offer by the Buyer to purchase goods pursuant to these conditions
(3) Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyers acceptance of these conditions.
(4) Any variation to these conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by a person duly authorised by the Seller.
(5) Quotations issued by the Seller are not offers capable of acceptance so as to make a binding contract. All orders placed with the seller require its acceptance in writing before any contract arises. Any delivery period shall run from the date of such acceptance.
(6) No servant or agent of the Seller has any authority to make any representation or give any warranty relating to the goods unless expressed in writing and signed by a person duly authorised by the Seller.
(7) This contract is not assignable by the Buyer.
(8) The Buyer acknowledges that the Goods are required for the purposes of the business carried on by him/it. The Seller warrants that the Goods will at the time of delivery correspond to the description given by the Seller. All other warranties conditions or terms relating to fitness for purpose merchantability or condition of the Goods and whether implied by statute or common law or otherwise are excluded.
3. THE PRICE AND PAYMENT
(1) The price payable for the Goods shall be the Sellers quoted price or the list price current at the date of despatch. In the case of an order for delivery by instalments the price payable for each instalment shall be the list price current on the date of delivery of that instalment unless otherwise stated in writing.
(2) Unless otherwise stated in writing the prices quoted by the Seller do not include the cost of delivering the Goods.
(3) All the prices quoted by the Seller are subject to the addition of Value Added Tax together with any other tax applicable at the time of sale.
(4) Payment for the Goods is due on the fifteenth day of the month following the date of invoice unless these payment terms are varied in writing by a person duly authorised by the Seller (time for payment is of the essence).
(5) Interest on overdue invoices shall accrue from the date payment becomes due from day to day until the date of payment at a rate of 2% above Bank of England base rate from time to time in force and shall accrue at such a rate after as well as before any judgement.
(6) The price of the Goods shall be due in full to the Seller in accordance with these terms and conditions and the Buyer shall not be entitled to exercise any set-off lien or any other similar right or claim.
4. DEFAULT OR INSOLVENCY OF BUYER
If the Buyer shall fail to make any payment on the due date or shall enter into any composition or arrangement with its creditors or if being a company it shall have a receiver, administrative receiver or administrator appointed or shall pass a resolution for winding up or have a petition for winding up presented against it or if not being a company shall have a bankruptcy order made or if there shall be any breach by the Buyer of any of the terms or conditions herein without prejudice to any of the Sellers other rights the Seller may:
(a) suspend or cancel deliveries of any Goods due to the Buyer and/or
(b) appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract with the Buyer) as the Seller may in its sole discretion think fit.
5. DELIVERY OF THE GOODS AND PASSING OF THE RISK
(1) The Buyer shall be solely responsible for the unloading or discharging of Goods delivered pursuant to this contract and delivery shall be deemed to be effected and the risk (but not the property) in the Goods shall pass to the Buyer as follows :-
(a) in all cases where the Goods are delivered by the Seller or on behalf of the Seller by road or rail;
(i) where delivery is made in drums or other containers when the drums or other containers have been removed from the vehicle transporting them;
(ii) where delivery is made by road tanker, when the Goods have passed from the road tanker s final flange;
(iii) where delivery is made by rail tanker or wagon, when the rail tanker or wagon containing the Goods enter onto the premises of the Buyer.
(b) in all other cases where the Goods are delivered by the Seller or on behalf of the Seller to the Buyers address or the address specified by the Buyer and agreed by the Seller for delivery when the Goods have been so delivered;
(c) where Goods are to be collected by the Buyer or by anyone on its behalf :-
(i) where delivery is made in drums or other containers, when they have been placed on the vehicle collecting them;
(ii) where delivery is made from storage tanks, when the Goods have passed from the final flange of the storage tank's discharge line;
(iii) in any other case, when Goods have passed into the control of the Buyer or any person acting on its behalf;
(2) If the Buyer shall fail to take delivery of the Goods at the date specified in this Contract or when the delivery becomes due, then the Seller may cancel any such delivery or deliveries of which the Buyer has failed to take delivery or if it sees fit sell such Goods without prejudice to its rights to claim damages;
(3) All times or dates given for delivery of the Goods are given in good faith but without any responsibility on the part of the Seller. Time of delivery shall not be of the essence of any contract nor shall the Seller be under any liability for any delay beyond the Seller's control;
(4) If for any reason the Buyer is unable to accept delivery of the Goods at the time when they 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 at the cost of the Buyer and take all reasonable steps to safeguard and insure them at the cost of the Buyer, provided that the Buyer shall be immediately informed thereof.
(5) The Seller shall have the right to make delivery by instalments of such quantities and at such intervals as it may decide, and any express provision as to instalments in this Contract shall be in addition to and not in derogation of this right.
(6) In all transactions once delivery has been effected as stated above the Buyer is deemed to have accepted the goods and is deemed to be satisfied with both the quantity and the quality subject to Clause 7 (headed Passing of Property and Retention of Title) below.
(7) Where goods have been repackaged by the Buyer upon receipt of the Goods. The Buyer is deemed to have accepted the Goods and the Seller cannot be held responsible for the condition of the Goods after repackaging has taken place.
(8) The Goods are sold in accordance with the description provided by the Seller. The Seller is not responsible for any Goods which are used contrary to their description.
6. RETURNS
Goods supplied in accordance with this Contract cannot be returned without the Seller's prior written authorisation. Duly authorised returns shall be sent to the Seller's Premises at the Buyer's expense.
7. PASSING OF PROPERTY AND RETENTION OF TITLE
(1) 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 but, unless otherwise expressly agreed in writing, the Goods shall remain the property of the Seller until all payments under this contract and any other Contract between the Seller and the Buyer and on any other account whatsoever have been made in full and unconditionally. Whilst the ownership of the Seller continues the Buyer shall keep the Goods separate and identifiable from all other goods in its possession as bailee for the Seller.
(2) In the event of any resale by the Buyer of the Goods the beneficial entitlement of the Seller shall attach to the proceeds of sale so that such proceeds or any claim therefore shall be assigned to the Seller and until such assignment shall be held on trust in a separate identified account for the Seller by the Buyer and such proceeds shall not be mingled with other moneys or paid into any overdrawn bank account and shall at all times be identifiable as the Seller's money.
(3) In the event of failure to pay the price under this Contract or any other contract between the Seller and the Buyer the Seller shall have power to re-sell the Goods, such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise and for such purpose the Seller and its servants and agents may forthwith enter upon any premises or land occupied or owned by the Buyer to remove the Goods.
(4) Pending the passing of title of the Goods the Buyer shall at all times keep the Goods comprehensively insured against loss or damage by accident, fire, theft and other risks usually covered by insurance in the type of business carried on by the Buyer in an amount at least equal to the balance of the price for the same from time to time remaining outstanding. The policy shall bear an endorsement recording the Seller's interest.
8. LIABILITY
(1) (a) In the case of Goods which are to be delivered by the Seller or on behalf of the Seller no liability for non-delivery, loss of or damage to the Goods occurring prior to delivery or for any claim that the goods are not in accordance with this Contract will attach to the Seller unless claims to that effect are notified in writing by the Buyer to the Seller (and in the case of claims for non-delivery, loss or damage with a copy to the carrier if the Seller's own vehicles have not been used to deliver the Goods) :-
(i) within seven days of delivery for loss, damage or non compliance with this contract; or
(ii) within ten days of the date of the invoices for non-delivery.
(b) If the Buyer shall fail to give notice in accordance with Condition 8(1)(a) above the Goods shall be deemed to be in all respects in accordance with this Contract and without prejudice to earlier acceptance by the Buyer it shall be bound to accept and pay for the same accordingly.
(2) (a) Subject to these Conditions the Seller undertakes in the case of Goods manufactured by the Seller that if within three months of delivery of any item of the Goods a serious defect in materials or workmanship appears therein it will at its own discretion either credit to the Buyer in full the price paid by the Buyer to the Seller for such item or repair it or supply a replacement thereof free of charge at the place of delivery specified by the Buyer and agreed by the Seller for the original Goods provided that in any case they have been accepted and paid for.
(b) In the case of Goods not manufactured by the Seller, the Seller will pass on to the Buyer to the extent that it is able any benefits obtainable under any warranty given by the Seller's supplier provided that the Goods have been accepted and paid for.
(c) In order to exercise its rights under this Condition 8(2) the Buyer shall inform the Seller within seven days of the date when such defect appeared or ought reasonably to have been discoverable and shall at the Seller's written request return the defective Goods carriage paid to the Seller's Premises.
(3) Nothing herein shall impose any liability upon 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;-
(a) any failure by the Buyer to comply with any recommendations of the Seller as to its storage and handling of the Goods
(b) where the goods have been repackaged by the Buyer for resale or any other purpose
(4) Where the Goods are for delivery by instalments any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Buyer shall be bound to accept delivery thereof.
(5) Save as may be provided by United Kingdom Statute where the Goods are for use as "feeding stuff" (as defined in the Agriculture Act 1970) or where the Goods are sold to a person dealing as consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions or other terms implied by statute or common law as to the Goods conformity with description or sample or their quality or fitness for a particular purpose are hereby expressly excluded.
(6) Where the Goods are sold under a consumer transaction defined by the Consumer Transactions (Restrictions on Statements) Order 1976 the statutory rights of the Buyer are not affected.
(7) In any event the Seller's liability to the Buyer in respect of the consequences of any breach or non-performance of this Contract howsoever caused or arising shall be limited to the price of the Goods the subject matter of the particular delivery. In no circumstances whatsoever shall the Seller be liable in contract or tort or otherwise for any consequential or indirect damage or loss however caused other than death or personal injury resulting from the negligence of the Seller.
8) For the avoidance of doubt nothing herein contained shall have the effect of excluding or restricting the liability of the Seller for death or personal injury resulting from its negligence in so far as the same is prohibited by United Kingdom statute.
9. QUANTITY AND WEIGHT
(1) The Seller reserves the right to deliver against any order an excess or deficiency up to 10% of weight or volume ordered.
(2) The weight of the Goods delivered shall be determined by the Seller or the Seller's agent. Any discrepancy between the weight so determined and the weight determined by the Buyer or the Buyer's agent upon receipt of the Goods shall be notified by the Buyer to the Seller within three days of delivery. In the absence of notification in writing of any claim within three days from the date of delivery the weight of the Goods shall be deemed to be the weight declared by the Seller.
(3) No claim will be considered unless accompanied by a copy of the delivery note, which must be in any event signed and dated by the Buyer on the date of delivery.
10. INDEMNITY BY BUYER
The Buyer shall indemnify the Seller against all costs, claims and damages incurred arising from any alleged infringement of patents, trade marks registered or unregistered designs, or copyright occasioned by the manufacture or sale of the Goods according to designs or configurations or by processes specified or supplied by the Buyer or arising from the condition or use of the Goods in the event and to the extent that the costs, claims and damages are occasioned partly or wholly by the carelessness of the Buyer, its employees or agents.
11. FORCE MAJEURE
The Seller shall not be liable for any failure to fulfil any obligation hereunder if and to the extent that such fulfilment is prevented by circumstances beyond its reasonable control.
12. SUITABILITY OF STORAGE FACILITIES
In the case of Goods conveyed by road or rail transport the Seller reserves the right at any time without notice to refuse to make delivery of any quantity of the Goods if, in the opinion of the Seller, the Buyer's storage tank or other installation (or any valve, filling line, pump or other equipment of the Buyer required to be used in connection therewith) into which such quantity of the Goods would be transferred from the road or rail transport on delivery is unsuitable on the grounds of inaccessibility to road or rail transport or of danger to persons or property or of any existing or apprehended contravention of any statute, regulation, bye-law or other rule having the force of law. Where, however, delivery is made by the Seller of any quantity of the Goods conveyed by road or rail transport such delivery shall not in any way be deemed an admission on the part of the Seller as to the suitability of the Buyer's storage tank or other installation as aforesaid.
13. PACKAGES, PALLETS AND CONTAINERS
Where packages, pallets or other containers are returnable they should be returned in good order at the Buyer's expense to the Seller's Premises and the Buyer shall notify the Seller of the date of despatch thereto. If the Buyer fails within a reasonable period and in any case within 45 days to return any such packaging or pallet or container in good order and condition, the Buyer shall pay the cost of replacement thereof. In any case where the Seller agrees to exchange packages, pallets or other containers, the Buyer shall ensure that any exchanged packages, pallets or containers shall be of at least equal quality to those provided by the Seller. Where deliveries are made in bulk bins or boxes the Buyer shall be responsible for any loss or damage to such bulk bins or boxes between delivery to the Buyer and collection by the Seller and if any such bulk bin or box is not available for collection from the Buyer within a period of 30 days from the date of delivery then demurrage shall be payable by the Buyer at the rate stipulated by the Seller in respect of each succeeding day immediately following such period of 30 days until the date on which the Seller receives notification from the Buyer that such bulk bin or box is available for collection.
14. EXPORT TERMS
(1) Where the Goods are supplied for export from the United Kingdom, the provisions of this Clause 14 shall (subject to any special term agreed in writing and signed by a duly authorised representative of the Seller) apply. In the case of any inconsistency between the other provisions of these Conditions and this Clause 14 the latter shall prevail.
(2) 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.
(3) Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered FOB the air or sea port of shipment as defined in "INCOTERMS 1990" and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
(4) The Buyer shall be responsible for arranging and 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.
(5) Where prices are quoted in any currency other than Sterling, the rate of exchange will be stated by the Seller in the Contract for sale. The Buyer shall not be entitled to reduce the amount of any payment on the grounds of any alteration in the rate of exchange from that so stated.
(6) Passing of the risks shall be in accordance with the provisions of "INCOTERMS" 1990.
(7) No claim will be considered unless accompanied by a survey report from a Lloyd's agent, if applicable, or signed declaration of shortage by the relevant customs authority.
15. HEADINGS
The headings in these conditions are intended for reference only and shall not affect their construction.
16. GOVERNING LAW AND ARBITRATION
The construction, validity and performance of this Contract shall be governed by the Laws of England and the Buyer submits to the Jurisdiction of the Courts of England.