TERMS & CONDITIONS OF SALE
The following expressions shall have the following meanings:
“Buyer” – the individual firm company or other party from whom an order to supply goods is received by the Seller.
“Conditions” – the standard terms and conditions of sale of the Seller as set out in these terms and includes any additional terms and conditions of sale agreed by the Seller.
“Contract” – a contract for the supply of Goods by the Seller to the Buyer.
“Date of Delivery” – the date on which delivery of the Goods takes place pursuant to Condition 5
“Goods” – the goods which the Seller is to supply under the Contract.
“Seller” – J Ll Leach & Co Limited and any subsidiary or holding company or associate company
(as defined in the Companies Act 1985(as amended))
- words importing the singular number shall include the plural and vice versa, words importing one gender shall include all genders, and words importing persons shall include bodies corporate, unincorporated associations and partnerships.
If satisfactory references on the Buyer are not provided within seven days of a request therefore by the Seller, the Seller may terminate the Contract without liability.
The Seller reserves the right to assign or sub-contract the Contract or any part of it. The Buyer shall not be entitled to assign the benefit of the Contract without the consent in writing of the Seller. If at any time any one or more of the provisions or part of these Conditions becomes or is or is held by a court to be invalid, illegal or unenforceable in any respect under any law, the validity and enforceability of the remaining provisions shall not in any way be affected or impaired
ORDERS, ACKNOWEDGENTS AND VARIATIONS
- Notwithstanding that the Seller may have given a detailed quotation or estimate either verbally or in writing no order shall be binding on the Seller unless and until it has been acknowledged in writing by the Seller or the Goods are delivered by the Seller to the Buyer pursuant to the order.
- These Conditions are incorporated in the Contract and contain the entire obligations between the Seller and the Buyer. In the case of any inconsistency between any letter or quotation incorporating or referring to these Conditions and any order, letter or form of contract sent by the Buyer to the Seller, whatever may be their respective dates, the provisions of these Conditions shall prevail. In the event of the Seller entering the Contract without the Seller having submitted a written quotation or other letter or document incorporating or referring to these Conditions but in circumstances where the Buyer has had prior notice of these Conditions then all Goods supplied shall be subject to these Conditions
- The Seller’s quotations are provisional insofar as they are subject to alterations by reference to any changes in the price of raw materials, any item to be acquired by the Seller from a third party, rates of wages, other costs of production and any other circumstances beyond the Seller’s control taking place between the date of the quotation and the Buyer’s placing of an order for such goods.
- No variation of the Contract by the Buyer shall be binding upon the Seller unless made in writing and Signed on behalf of the Seller.
- Any representations (except fraudulent misrepresentations) or warranties made by or on behalf of the Seller prior to the Contract (whether verbally or in writing) are hereby expressly excluded and shall Be of no effect.
- To enable the Seller to pursue its policy of continuous improvement of its products the Seller reserves the right to amend the specification of its products and services from time to time whether before or the making of a Contract.
- The Seller shall be entitled to adjust the Contract price of the Goods whether before or after the making of the Contract in the event of any variation in the cost to the Seller of supplying the same caused by any reason whatsoever beyond the control of the Seller and the Seller’s written certificate of such variation, shall be conclusive evidence of any such variation and the extent of such variation.
- Unless otherwise stated, the price set out in the Seller’s quotation does not include VAT nor the cost of packaging, loading, carriage, off-loading or insurance (which should be arranged by the Buyer at it’s sole risk and expense.
- Delivery of Goods shall be deemed to be effected by the Seller at the following times:
- where Goods are delivered by the Seller, when the same arrive prior to unloading at the Buyer’s premises or at premises nominated by the Buyer or at the nearest accessible road point to such premises.
- where Goods are delivered by an independent carrier, at the time of loading onto the carrier’s vehicle
- where Goods are to be collected by or on behalf of the Buyer by its servants or agents, when the same are collected or when the Seller notifies the Buyer that the same are ready for collection.
- Whilst the Seller will make every reasonable effort to complete the Contract by the date(s) specified for delivery of Goods, such date(s) shall only constitute the times by which the Seller expects to effect such delivery but the time for performance of the Contract by the Seller shall not be of the essence of the Contract, the Seller’s failure to so deliver by the due date(s) shall not constitute a breach of Contract and the Seller shall not in any circumstances be responsible for any direct or consequential loss or damage of any kind whatsoever resulting failure to deliver by the due date(s). The seller may wholly or partly suspend deliveries of Goods and the Buyer shall accept late delivery of such Goods unless the buyer has cancelled the Contract in accordance with the provisions of the Contract.
QUANTITIES INSTALMENTS AND STORAGE
- Where Goods are delivered by instalments each instalment shall be deemed to be sold under a separate Contract and no default in respect of any one instalment shall affect due performance of the Contract as regards other instalments.
- The Seller will endeavour to deliver the quantity of Goods ordered. If there is a surplus or shortage of Goods which is so slight that it would be unreasonable for the Buyer to reject delivery of them the Buyer shall be deemed to have accepted the Goods and pay for the actual quantity delivered.
- The Buyer shall indemnify and keep indemnified the Seller in full against all costs, losses, damages and expenses whatsoever arising in connection with the storage of the Goods if the Seller shall be prevented from delivering any of the Goods in accordance with the Contract as a result of delay or default on the part of the Buyer or any reason beyond the Seller’s reasonable control and such costs, losses, damages and expenses will be added to and form part of the price of the Goods. The Seller shall be entitled in its absolute discretion and without giving prior notice to the Buyer at the expiration of 3 months to sell or otherwise dispose of Goods kept in storage.
TERMS OF PAYMENT
Unless otherwise agreed the price payable under the contract shall be due and payable at the Seller’s offices in sterling 30 days after the last day of the month in which the Seller’s invoice is dated provided that the Seller reserves the right to require payment prior to delivery of the Goods or on sending notification that the Goods are in a deliverable state or if the Buyer has previously failed to make any payment owing to the Seller on the due date.
- If the Buyer does not pay the whole or any part of the price on the required day, then the Buyer shall pay to the Seller interest on the amount outstanding from the required day until actual date of payment at the rate of 4% p.a. over the base rate of Barclays Bank plc from time to time in force which shall accrue daily.
- So long as any payment due from the Buyer to the Seller is outstanding, whether under the same or any other Contract or transaction, the Seller shall have a general lien on any Goods and any other property of the Buyer in possession for whatever purpose and whether worked on or not. The Seller shall be entitled on the expiration of not less than 14 days notice in writing to the Buyer to dispose of such property and to apply the proceeds towards satisfaction of such debts.
- The Buyer shall not be entitled to withhold payment of any amount due to the Seller due to any disputed claim by the Buyer in connection with the Contract nor shall the Buyer be entitled to set off against any amount payable under the Contract to the Seller any amount which is not then due and payable by the Seller or for which the Seller disputes liability.
SUSPENION AND CANCELLATION
- If the Buyer shall commit any breach of the Contract and fail to remedy the same within 7 days of receiving the Seller’s request in writing so to do or any distress or execution is levied on any goods or property of the Buyer or 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 an incorporated company) passes a resolution for winding up (otherwise than for the purpose of amalgamation or reconstruction), or a Court makes an order to that effect, or an encumbrancer takes possession, or an administrative receiver or receiver is appointed, of any of the property or assets of the Buyer, or the Buyer ceases, or threatens to cease, to carry on business or is unable to pay its debts within the meaning of section 123 Insolvency Act 1986, or the Seller reasonably suspects that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly, the Seller may: (a)stop any Goods in transit and suspend further deliveries and/or (b) suspend work on the Contract and/or (c) hold by way of a general lien all materials or other property of the Buyer in the possession of the Seller and/or (d) determine the Contract forthwith, and if the Goods, or any part of them have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
- In the event of the Seller other than in any of the circumstances set out in Condition 8.1 being prevented or hindered from completing the Contract either wholly or in part in accordance with the terms of the Contract for any reason beyond its reasonable control then further performance of the Contract shall be suspended for the period during which the Seller is so prevented provided that in the event of the Contract being suspended for a continuous period of more than 3 months then either party may give the other notice in to terminate the Contract immediately and in such circumstances the Buyer shall pay for all Goods supplied to the date of such termination such payment to be made on or before the last day of the month following the month during which termination was effected. The Seller shall be under no liability whatsoever to the Buyer for any direct consequential loss or damage suffered by the Buyer as a result of the Seller’s inability to perform its obligations under the Contract in these circumstances.
- The Sellers rights contained in Condition 13 shall continue beyond the discharge of the parties primary obligations under the Contract consequent upon its termination.
- The termination of the Contract for whatever reason will be without prejudice to the rights and duties of either party accrued prior to termination.
CLAIMS FOR DAMAGE IN TRANSIT/DEFFECTS
- The Buyer shall inspect the Goods within 3 days of Delivery and whether or not the Buyer carries out such obligation to inspect no claims for non-delivery, shortages in quantity of units delivered defective Goods, partial loss or damages to Goods will be accepted by the Seller unless: (a) they are notified in writing by the Buyer to the Seller within 3 days after the Date of Delivery (in the case of partial loss, damage or defective Goods) or 14 days after the date of invoice (in the case o non- delivery) and (b) the Goods in respect of which a claim is made together with the packing are preserved intact as received for a period of 21 days from notification of any such claim (or 35 days’ in the case of an export order) and the Buyer permits the Seller or its servants or agents full and free right of access to inspect the Goods and investigate the claim. Section 3 of the Sale and Supply of Goods Act 1994 shall not apply.
- In substitution for all and any other rights which the Buyer might or would have had but for these Conditions, and subject to Condition 9.1, the Seller shall make good by replacement or, at its option, repair any failure (fair wear and tear excepted) in the Goods which, under conditions of proper use and maintenance, results from defects in the Seller’s manufacture, design, materials or workmanship and which appears not later than after the Date of Delivery.
- Notwithstanding the provisions of Condition 10.1 in the case of a claim falling within Condition 10.1, the Seller reserves the right at its sole discretion to credit the Buyer in full the price paid by the Buyer to the Seller.
The Seller’s liability under this Condition shall automatically cease if, (a) the Buyer is in breach of this or any other contract made with the Seller, or (b) the Seller or its servants or agents are denied full and free right of access to the allegedly defective Goods, or (c) the Goods have been treated improperly or in a way which has contributed to the defect (whether before or after a defect is detected)
Where Goods are supplied by the Seller but manufactured by a third party, the Seller shall use its best endeavours to pass on to the Buyer any benefits relating to warranties in respect of or guarantees of such Goods which the Seller has under contract with that third party
THE WARRANTY SET OUT IN CONDITION 10.1 SHALL BE IN LIEU OF ANY WARRANTIES CONDITIONS OR UNDERTAKINGS WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE HOWSOEVER WHICH WARRANTIES, CONDITIONS AND UNDERTAKINGS ARE HEREBY EXPRESSLY EXCLUDE, EXCEPT THAT SUCH EXCLUSIONS WILL NOT APPLY TO ANY IMPLIED CONDITION THAT THE SELLER HAS OR WILL HAVE THE RIGHT TO SELL THE GOODSWHEN THE PROPERTY IS TO PASS
- THE SELLER’S RESPONSIBILITY IS LIMITED TO THE TERMS OF THE FOREGOING PROVISIONS OF THIS CONDITION AND (EXCEPT IN RESPECT OF DEATH OR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF THE SELLER, ITSSERVANTS OR AGENTS) THE SELLER SHALL NOT BE LIABLE FOR ANY CLAIM FOR DIRECT OR INDIRECT CONSEQUENTIAL OR INCIDENTAL LOSS, INJURY OR DAMAGE WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT) MADE BY THE BUYER OR ANY THIRD PARTY AGAINST THE SELLER ARISING OUT OF OR IN CONNECTION WITH ANY DEFECT IN THE GOODS
TITLE TO GOODS
Until payment in full of all monies due and owing by the Buyer to the Seller on any account whatsoever has been received in full legal and beneficial ownership of Goods shall be retained by the Seller notwithstanding that the risk in the same shall pass to the Buyer at the time of delivery.
- The Buyer may convert or incorporate the Goods into or mix the Goods with other goods prior to the property in the Goods passing to the Buyer but in that event the property in such goods will (whether the other goods into which the Goods have been converted or incorporated or with which the Goods have been mixed belong to the Buyer or not) be and remain with the Seller immediately on such conversion, incorporation or mixture until the purchase price of the Goods has been paid in full
- Where the Goods are converted, incorporated, mixed or sold the Buyer will hold in trust for the Seller such sums to which the Buyer is entitled from any third-party buyer. Notwithstanding this condition 11.3, the Buyer will be entitled to retain from the proceeds of such sale any sum in excess of the sum Or sums due to the Seller under the Contract.
RISK AND INSURANCE
- The risk in the Goods shall pass to the Buyer at the time of delivery as provided for in Condition 5.
- Notwithstanding the reservation of title contained in Condition 11. the Buyer shall insure the Goods and/or any products made wholly or partly from them for the full amount of the price payable under the Contract from the time of delivery of the Goods until the date title in the Goods passes to the Buyer pursuant to Condition 11.
Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
- Any notice given pursuant to Condition 13.1 shall be deemed to have been served if delivered by hand, on the first Business Day following delivery, if sent by post on the third Business Day after
posting if the address of the recipient is in the country of despatch, otherwise on the seventh Business Day after posting, if sent by facsimile transmission, on the first Business Day following successful transmission.