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1. INTERPRETATION
In these Conditions:-
1.1 "the Buyer" means the person who agrees to purchase the Products from the Seller subject to these Conditions whose details may be set out overleaf;
1.2 "these Conditions" means the terms and conditions of sale set out in this document;
1.3 "the Contract" means the agreement between the Seller and the Buyer for the sale and purchase of the Products;
1.4 "the Delivery Address" means the address for delivery of the Products which shall be the Buyer's principal place of business unless specified overleaf;
1.5 "the Estimated Delivery Date" means the date on which the Seller estimates that the Products will be delivered which may be set out overleaf;
1.6 "the Products" means the goods which the Seller is to supply to the Buyer in accordance with these Conditions and which may be listed overleaf;
1.7 "the Seller" means SPECIALIST GROUP Limited whose principal place of business is at Guinness circle, Newbridge , Trafford Park , Manchester M17 1EB. |
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2. BASIS OF SALE
2.1 These Conditions apply to all contracts for the sale of goods entered into by the Seller. By placing an order with the Seller or accepting the Seller's quotation, the Buyer agrees to deal with the Seller on these Conditions to the exclusion of all other terms, conditions, warranties or representations with the exception of any terms specified in writing overleaf.
2.2 No variation to these Conditions shall be binding unless made in writing specifying both which clause is to be varied and full details of such variation and signed on behalf of each of the Buyer and the Seller.
2.3 Any quotation given by the Seller is, unless otherwise agreed in writing, subject to alteration or withdrawal by the Seller without notice and does not constitute an offer to supply any goods.
2.4 The Seller's employees or agents are not authorised to make any representations concerning the Products unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.5 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 Products which is not confirmed in writing by the Seller is followed or acted upon 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.
2.6 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. |
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3. SALE AND PURCHASE
3.1 The Buyer agrees to purchase the Products from the Seller and the Seller agrees to sell the Products to the Buyer.
3.2 The Buyer shall not be entitled to cancel in whole or in part any order which the Seller has accepted or any quotation of the Seller which the Buyer has accepted in either case whether orally or in writing.
3.3 The Seller reserves the right to make any changes in the specifications of the Products which are required to conform with any applicable safety or other requirements or which do not materially affect their quality or performance. |
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4. DELIVERY
4.1 The Seller shall use its reasonable efforts to deliver the Products to the Buyer at the Delivery Address on or around the Estimated Delivery Date, but time of delivery shall not be of the essence.
4.2 The Seller shall be entitled to deliver the Products in instalments in which case each instalment shall be treated as an entirely separate contract and any default or breach by the Seller in respect of any such instalment shall not entitle the Buyer to cancel any other instalment or treat the Contract as a whole as repudiated.
4.3 If the Products are damaged on delivery or less than the correct amount of the Products is delivered, then unless the Buyer notifies the Seller and the carrier (otherwise than by a note on the delivery note) within three days of delivery no claim against the Seller may be made in respect of damage to or short delivery of such Products.
4.4 If the Products have not been delivered despite receipt by the Buyer of the invoice from the Seller relating to them, then unless the Buyer notifies the Seller within three days of such invoice no claim against the Seller may be made in respect of non-delivery of those Products.
4.5 The Buyer shall be deemed to accept the Products on delivery notwithstanding any late delivery by the Seller.
4.6 If the Buyer fails to collect or take delivery of the Products or fails to give the Seller adequate delivery instructions before the Estimated Delivery Date, then, without prejudice to any other right or remedy available to the Seller, the Seller may:-
4.6.1 store the Products until actual delivery is made and charge the Buyer for the costs (including insurance) of storage; and/or
4.6.2 sell the Products at the best price readily obtainable and (after deducting all storage and selling expenses) charge the Buyer any shortfall below the price under the Contract and in either case shall be entitled to charge interest (both before and after any judgement) on the price payable for the Products under the Contract at 4% over the base rate from time to time of Bank of Scotland PLC from the Estimated Delivery Date to the date of actual delivery. |
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5. PRICES AND PAYMENT
5.1 The price of the Products shall be the price set out overleaf or, if not specified, the Seller's standard price at the date of despatch of the Products.
5.2 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller but includes delivery if required by the Buyer.
5.3 The Seller shall be entitled to invoice the Buyer for all amounts due under the Contract on or at any time after delivery of the Products unless the Products are to be collected by the Buyer or the Buyer wrongly fails to take delivery of them, in which case the Seller shall be entitled to invoice the Buyer at any time after the Seller has notified the Buyer that the Products are ready for collection or (as the case may be) the Seller has tendered delivery of the Products.
5.4 The Buyer shall make payment to the Seller in respect of all invoices in full and without any deduction or set off (whether in relation to such invoice or otherwise). Payment shall, unless the contrary is specified overleaf, in the Seller's quotation or in the Seller's catalogue, be made by the last day of the month following delivery of the Products to the Buyer. Time of payment shall be of the essence.
5.5 All payments shall be applied to invoices and to Products listed in such invoices in the order determined in its discretion by the Seller.
5.6 If full payment is not received by the Seller by the due date then without prejudice to its rights the Seller shall be entitled:-
5.6.1 to sue for the entire price; and/or
5.6.2 to charge interest (both before and after any judgement) at the rate of 4% over the base rate from time to time of Bank of Scotland PLC on the outstanding balance; and/or
5.6.3 to require the immediate return to the Seller of all goods agreed to be sold by the Seller to the Buyer in which the property has not passed to the Buyer inaccordance with the provisions of clause 7 below and the Buyer hereby agrees to reimburse to the Seller upon demand the Seller's costs or expenses in recovering such goods. |
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6. WARRANTY AND LIABILITY
6.1 The Seller warrants that the Products will on delivery be free from defects in material and workmanship. Notwithstanding any sample or description of the Products the Contract shall not constitute a sale by sample or description.
6.2 The Buyer shall notify the Seller in writing of any claim under clause 6.1 above within three days of delivery of the Products if any defect is or should be obvious on examination and within seven days of commencement of use of the Products in any other circumstances and shall give the Seller full opportunity to examine them at the Buyer's premises or shall on request by the Seller redeliver them for examination at the Seller's premises.
6.3 In the event of any valid claim under clause 6.1 above being made by the Buyer, the Seller shall be entitled to replace or repair the Products (or the part in question) free of charge or, at the Seller's sole discretion, refund or credit to the Buyer the price of the Products (or a proportionate part of the price as appropriate) but the Seller shall have no further liability to the Buyer.
6.4 There are no warranties, conditions, guarantees or representations as to merchantability or fitness for a particular purpose of the Products or other warranties, conditions, guarantees or representations whether express or implied, orally or in writing, except as expressly stated in the Contract.
6.5 The Seller shall be liable for any death or personal injury arising from use or supply of the Products to the extent that it arises from the proven negligence of the Seller or its employees.
6.6 The Seller shall be liable for any direct physical damage other than death or personal injury to the extent that it results from the negligence of the Seller or its employees up to a maximum of £50,000.
6.7 Except pursuant to sub-clause 6.5 above, the Seller shall not in any event be liable for any indirect, special or consequential damages, howsoever arising (including but not limited to loss of anticipated profits) in connection with or arising out of the furnishing, functioning or use of the Products, or any item or service provided, and shall not be liable for any other damages except as provided in the Contract.
6.8 Except pursuant to sub-clauses 6.5 and 6.6 above in no event shall the Seller's liability in respect of any of the Products exceed the price paid for those Products.
6.9 Except pursuant to sub-clause 6.5 above, no action, regardless of form, arising out of the transactions under the Contract may be brought by the Buyer more than two years after the cause of action has accrued.
6.10 Except as provided in this clause the Buyer shall indemnify the Seller against all actions, demands or claims by third parties whether in tort or otherwise arising directly or indirectly from the supply of the Products under the Contract. |
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7. RISK AND TITLE
7.1 Risk of damage to or loss of the Products shall pass to the Buyer on delivery or, if the Buyer fails to collect or take delivery of the Products or fails to give the Seller adequate delivery instructions, three days after the date when the Seller tenders delivery of the Products or notifies the Buyer that they are ready for collection.
7.2 Notwithstanding delivery and the passing of risk in the Products, or any other provisions of these Conditions, the property in the Products shall not pass to the Buyer and shall be retained by the Seller until the Seller has received in cash or cleared funds payment in full of the price of the Products and of all sums due in connection with the supply of all goods and services to the Buyer by the Seller at any time.
7.3 The Buyer shall hold all goods owned by the Seller as the Seller's fiduciary agent and bailee, shall store them in such a way that they are clearly identifiable as the Seller's property, shall maintain records of such goods identifying them as the Seller's property and shall keep them properly stored, protected and insured. The Buyer shall be entitled to resell or use such goods in the ordinary course of its business but shall account to the Seller in respect of the proceeds of sale or otherwise of such goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any other monies or property of the Buyer and third parties and, in the case
of tangible proceeds, properly identified, stored, protected and insured. The Buyer shall maintain records of the persons to whom it sells or disposes of such goods and of the payments made by such persons for such goods and will allow the Seller to inspect these records and the goods themselves on request. The Seller shall be entitled to trace the proceeds of sale or otherwise of such goods. |
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7.4 For the avoidance of doubt, the Products, all other goods supplied to the Buyer by the Seller and all goods into which the Products or such other goods have been incorporated which are in the Buyer's possession shall be presumed to belong to the Seller unless the Buyer can prove otherwise.
7.5 Until such time as the property and any goods owned by the Seller passes to the Buyer, the Seller shall be entitled at any time to require the Buyer to deliver up such goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where such goods are stored and repossess them. The Buyer shall procure that any third party which holds such goods shall permit the Seller to take possession of them. The Seller shall be entitled to use or dispose of such goods as it wishes. Unless the Seller expressly elects otherwise any contract between it and the Buyer for the supply of the Products shall remain in existence notwithstanding any exercise by the Seller of any of its rights under this clause.
7.6 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 monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable. |
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8. THIRD PARTY RIGHTS
8.1 The Seller shall at its own expense defend any action against the Buyer and pay all damages and costs awarded against the Buyer (except to the extent that the Buyer is entitled to recover such sums under any policy of insurance) based on a claim that any of the Products constitute an infringement of any patent or copyright or other intellectual property rights of the United Kingdom or misuse any confidential information belonging to any third party ("a Claim") PROVIDED THAT:-
8.1.1 the Seller shall be notified promptly in writing by the Buyer of any notice of a Claim;
8.1.2 the Buyer shall have the sole control of the defence of any action on a Claim and all negotiations for settlement or compromise;
8.1.3 the Buyer shall allow its name to be used in proceedings if necessary and provide all reasonable assistance in defending any action; and
8.1.4 the Buyer shall take all steps reasonably possible to mitigate or reduce any damages and costs which may be awarded against it as a result of a Claim.
8.2 If a Claim is successful or the Buyer considers that it is likely to be successful, the Seller may, at its option or as part of a settlement or compromise, procure for the Buyer the right to
continue using the Products, modify the Products so that they are non-infringing or terminate the Contract in so far as it applies to those Products subject to the Claim, in which latter case the Seller shall refund to the Buyer the price paid for such Products less depreciation on a straight line basis over the life of the Products as determined by the Seller.
8.3 In no event shall the Seller have any liability under this clause with respect to any claim based on the use of the Products in combination with any other product or equipment not supplied by the Seller.
8.4 This clause states the entire obligation and liability of the Seller with respect to infringement of intellectual property rights and misuse of confidential information.
8.5 The Seller grants to the Buyer no licence to use any intellectual property rights except and only to the extent that any licence is necessary to use the Products.
8.6 The Buyer shall not alter or remove any name or trade mark from the Products or their packaging. |
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9. TERMINATION
9.1 The Seller shall be entitled to terminate the Contract forthwith by notice in writing to the Buyer:-
9.1.1 if the Buyer commits an irremediable breach of the Contract, persistently repeats a remediable breach or commits any remediable breach and fails to remedy it within 30 days of receipt of notice of the breach requiring remedy of the same; or
9.1.2 if 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 the purposes of solvent amalgamation or reconstruction) or the Buyer ceases, or threatens to cease, to carry on business or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer or if the Seller reasonably apprehends that any of such events is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2 In the event of termination by the Seller pursuant to clause 9.1 above 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 it without any further liability to the Buyer and, if the Products have already been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and the Seller shall be entitled to charge interest (both before and after any judgement) at the rate of 4% over the base rate from time to time of Bank of Scotland PLC from the time of such cancellation or suspension until the Seller receives payment. |
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10. GENERAL
10.1 The remedies available to the Seller under the Contract shall be without prejudice to any other rights, either at common law or under statute, which it may have against the Buyer.
10.2 The failure of the Seller to enforce or to exercise, at any time or for any period of time, any term of or any right arising pursuant to the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect the Seller's right later to enforce or exercise it.
10.3 The invalidity or unenforceability of any term of, or any right arising pursuant to, the Contract shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.
10.4 Any notice required or permitted to be given under the Contract shall be delivered by hand or sent by recorded delivery mail or by telex to the Seller at its address set out above or to the Buyer at its last address known to the Seller and shall be deemed to have been given when actually received or, if recorded delivery mail is returned marked "gone away" or to like effect, on return of such recorded delivery mail.
10.5 The Contract is personal to the Buyer and the Buyer may not assign, transfer, sub-contract or otherwise part with the Contract or any right or obligation under it without the Seller's prior written consent.
10.6 The Seller shall have no liability to the Buyer if its performance of its obligations under the Contract is prevented or hindered due to any circumstances outside its control.
10.7 Clause headings are purely for ease of reference and do not form part of or affect the interpretation of the Contract.
10.8 The construction, validity and performance of the Contract is governed by the laws of England and the parties accept the jurisdiction of the English Courts. | |
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