CONDITIONS OF SALE January 2014
1. In these conditions
(i) “the Company” means Barton Electrical
(ii) “goods” means the articles, equipment or goods to which the document relates and
(iii) “the Buyer” means the purchaser of the goods from the Company.
2. All orders are accepted and all contracts are made subject to the following terms and conditions provided that any special conditions in any quotation or contract signed on behalf of the Company by a duly authorised employee shall prevail to the extent that they are inconsistent with the following terms and conditions.
3. If the Company’s terms and conditions (whether special or general) shall be at variance or inconsistent with any printed conditions attached to the Buyer’s order then the Company’s terms and conditions shall prevail to the extent that they are consistent with the following terms and conditions
4. A quotation of the Company does not constitute an offer by the Company to supply the goods and every acceptance of any quotation of the Company and every order by the buyer in response to any quotation of the Company shall be deemed an offer by the Buyer to the Company and will not be binding on the Company until the Company has given written acknowledgement of its acceptance of such an order.
5. A quotation shall be deemed to have been withdrawn unless an order in respect thereof is placed within the period specified in the quotation.
6. Except in respect of a quotation or acceptance of order where the price is expressly stated to be fixed for a specific delivery period, the Company reserves the right to alter its quotation or order prices in respect of the goods by reference to the price ruling at the date of dispatch of the goods by any additional sum as may from time to time be necessary to cover increases in the cost of the materials and or labour (or any other factor affecting the cost of production or delivery) which may occur between the date of conclusion of the contract and the date of dispatch.
7. Where in a quotation or acceptance of order a price is expressly stated to be fixed for a specific delivery period and for any reason (except where the same is due to the default of the Company) a supply is made under the quotation or order after the end of the said period the Company reserves the right in respect of such supply to change the price ruling at the date the despatch of goods in like manner as in Condition 6.
8. Where a quotation or acceptance or order specifies a delivery period but the Company is unable to complete delivery without further information or details from the Buyer and there is in the opinion of the Company a delay on the part of the Buyer in providing the information or details then the Company may if it wishes give notice extending the delivery period and without prejudice to the Company’s rights to vary its prices under Condition 6 hereof (and in the case of fixed price contracts) under Condition 7 hereof.
9. Any date or period set out herein for the delivery of the goods or any part of them shall not be of the essence of the contract and if the Company is prevented from delivery of goods at the time provided for delivery by reason of any cause outside its reasonable control (including but not so as to limit the generality of the foregoing fire, explosion, delay in supplies, plant breakdown, interference by labour strikes or lockouts or non-availability of transport or materials) then the date of period for delivery shall be extended by the duration of the occurrence provided always that if in any case the delaying factor or factors shall have operated for six weeks or more and shall still be operating the Buyer may give written notice to the Company to terminate the contract in respect of those goods which remain to be delivered under the contract.
10. Where goods are delivered by instalments, each such instalment shall be deemed to be sold or supplied under a separate contract to which these Conditions shall apply (mutatis mutandis) and save as provided in Condition 9 no default in respect of any one instalment shall affect or prejudice due performance of the contract as regards any other instalments. Goods offered “ex-stock” are offered for sale subject to them being unsold on receipt of the Customer’s order.
11. The company shall be entitled without the prior approval of the Customer, to assign sub contract or sub let the contract or any part thereof, but the Customer shall not be so entitled without approval of the Company.
TERMS OF PAYMENT
12. All goods supplied and delivered shall be paid for within 30 days from date of invoice. If any discount is offered by the Company then the same shall be deducted from the net amount only if the goods are paid for within the said 30 days and value-added tax will be added in accordance with prevailing legislation.
13. Non compliance with the Company’s terms of payment shall constitute default without reminder. In case of default the Company may charge interest at the rate of 1.25% per month from the date upon which the payment falls due. In the event that the Buyer shall fail to fulfil the terms of payment in respect of any notice the Company may in its sole discretion demand payment of all outstanding balances whether due or not and/or cancel outstanding orders and/or decline to make further deliveries except upon receipt of cash or satisfactory security. Except where the laws relating to bankruptcy and liquidation provide otherwise the Buyer shall not be entitled to withhold or set off payment for goods delivered by virtue of any debt claim or allegation other than a valid claim made in request of those goods under condition 14(a) or (b) below.
WARRANTIES AND CLAIMS
14. (a) The Buyer should satisfy himself by testing samples or otherwise of the fitness for his purpose of all goods ordered and will be deemed and conclusively presumed to have done so. If the goods delivered differ materially from their description or from samples supplied or are by reason of faulty material workmanship or packing unmerchantable then the Company undertakes to replace such goods or (at the option of the Company) to refund the purchase price or a fair proportion thereof. This undertaking by the Company is subject to and conditional upon the following provisions: –
(i) Claims in respect of faults readily discernible on a reasonable examination of the goods shall be made as soon as such faults are reasonably capable of discovery but in any event within three months of the delivery of the goods.
(ii) Claims in respect of other faults including faults not discernible until the goods have been in use or otherwise dealt with shall be made as soon as the fault is reasonably discernible but in any event within six months of the delivery of the goods to the Buyer.
(iii) All claims must be made in writing.
(iv) The Buyer must afford to the Company the opportunity to examine any goods that are subject of a claim before the goods have been further used or otherwise dealt with.
(v) The Company will not be liable for any damage to or deterioration of the goods that may occur after delivery whether the same may occur due to unsuitable storage conditions or to abuse or to any other cause whatsoever.
(vi) Goods in respect of which any claim is made under this condition shall be returned to the Company carriage paid for inspection or (if return is not practicable) alternatively the Company will inspect the goods or procure the same to be inspected in situ. In the event the Buyer’s claim shall be upheld the Company undertakes to reimburse the Buyer with cost of any such carriage but if the Buyer’s claim shall not be upheld then the Company reserves the right to charge the Buyer for all or part of the labour travelling carriage and other dues involved.
(vii) Subject to condition 26 the undertaking of the Company to make a replacement or refund shall be the absolute limit of the Company’s liability to the Buyer in respect of any such claim.
(b) The Company warrants that any survey advice representation for forecast given on the part of the Company from anything said or written in discussions or negotiations between the Company and the Buyer or their respective agents prior to the making of the contract is given in good faith and after due consideration of the facts before the Company but the Company shall be under no legal liability whether in contract negligence or howsoever in respect hereof to the Buyer or any other person except to the extent to which there is a breach of this warranty.
15. (a) No claim for short delivery of goods or damage to goods in transit can be entertained unless either (where this is possible) a receipt is given to the carriers detailing the shortage or damage at the time of delivery or alternatively notification of the shortage or damage is made to the company within seven days from the delivery of good by the carrier.
(b) No claim for non-delivery of goods can be entertained unless the Company is notified within seven days from the date of invoice.
16. Where goods are delivered by installments the Customer shall be obliged to pay for each installment upon the terms set out in this Condition.
17. Unless otherwise expressly agreed in writing, all illustrations and dimensions shown in the Company’s catalogues and other sales literature are approximate. The Company gives no guarantee or representation that the goods in all cases will be identical with the illustrations and dimensions specified in such catalogue and literature due to improvements and modifications to the goods or their specifications that may be made from time to time.
18. Where goods are ordered in accordance with the designs drawings and specifications or samples furnished by the Buyer or are ordered in accordance with the Buyer’s general requirements and are approved by the Buyer the Buyer shall indemnify the Company against all liability or alleged liability in respect of any patents registered trade marks or any other rights of third parties arising out of the manufacture sale or use of such goods and against all claims demands proceedings damages costs and expenses arising in respect of such liability or alleged liability.
19. The Company shall be entitled to reject any materials supplied or specified by the Customer, which the Company in its judgement considers unsuitable. Additional costs incurred by the company if such materials are judged to be unsuitable will be charged to the Customer. Quantities of materials supplied by the Customer shall be adequate to cover normal spoilage.
BUYERS CANCELLATION OR ALTERATION ORDERS
20. (a) The Buyer shall not be entitled to cancel the contract or any part thereof without lawful cause except on such terms as to indemnify the Company in full including loss of profit. The Company is not bound to agree to any such cancellation and may complete the contract notwithstanding any such purported cancellation by the Buyer.
(b) No variation of a term of the contract (unless specifically authorised by these conditions) shall bind either party unless such variation is made and agreed in writing.
PASSING OF RISK
21. The risk in the goods shall pass to the Buyer when the Company delivers the goods in accordance with the terms hereof to the Buyer or other person to whom the Company has been authorised by the Buyer to deliver the goods whether expressly or by implication and the Company shall not be liable for the safety of the goods thereafter and accordingly the Buyer should insure the goods thereafter against such risks as may be commercially prudent.
22. (a) All prices stated or referred to in the Company’s quotation or in the Company’s acceptance of order do not include any carriage or packing charges which (except as mentioned in paragraph (b) hereof) shall be paid for by the Buyer.
(b) Except in the respect of a quotation or acceptance of order where the carriage and packaging is expressly stated the Buyer to consult the Company’s standard charges for carriage and packaging. The Company reserves the right to alter its carriage and packaging charges by reference to the price ruling at the date of despatch of the goods.
SAMPLE AND DISPLAY MATERIALS
23. Samples for approval will be charged at normal selling price if not returned within 60 days. Samples of special designs made to the requirements of the Buyer will be charged at cost and are non returnable. Showboards, mountings and displays will be supplied free of charge but are returnable on request.
RESERVATION OF PROPERTY AND RIGHT OF DISPOSAL
24. (a) Title to and property in goods supplied by the Company shall remain vested in the Company (notwithstanding delivery of the goods and the passing of the risk in them to the Buyer) until: –
(i) the price of the goods: and
(ii) all other money due from the Buyer to the Company on any other account has been paid or satisfied in full
(b) Title to and property in goods supplied by the Company and delivered in Scotland or delivered elsewhere than Scotland to a carrier for transport to Scotland shall remain vested in the Company (notwithstanding the delivery of the goods and the passing of the risk in them to the Buyer) until the price of the goods has been paid or satisfied in full.
(c) Until the title to and property in the goods pass to the Buyer the following provisions shall apply: –
(i) The Company may at any time without prior notice to the Buyer repossess and resell their goods if any of the events specified in condition 25 occur or if any sum owed by the Buyer to the Company under this or any such other contract or on any other account is not paid on the due date for payment. For the purpose of exercising its rights under this sub-paragraph (i) the Company its employees or agents together with all vehicles and plant considered by the Company to be necessary shall be entitled at any time without prior notice to the Buyer to free and unrestricted entry upon the Buyer’s premises and or other locations where any of the goods are situated:
(ii) The Buyer shall store the goods in a proper manner without charge to the Company and ensure that they are clearly identified as belonging to the Company. Without prejudice to sub paragraph (c)(i) of this condition the Company shall been entitled to examine the goods in storage at any time during normal business hours and upon giving the Buyer reasonable notice of its intention to do so.
(iii) The rights and remedies conferred upon the Company by this condition are in addition to and shall not in any way prejudice limit or restrict any other rights or remedies of the Company.
(d) Until the Company is paid in full for all the goods the relationship of the Buyer to the Company shall be fiduciary in respect of the goods and if the same are sold by the Buyer the Company shall have the right to trace the proceeds thereof according to the principles in re Hallet’s Estate (1880) 13ChD696 (1874 to 80) All England reports (page 793) A like right for the Company shall apply where the Buyer uses the product in any way so as to be entitled to payment from a third party.
(e) Nothing in this clause shall entitle the Buyer to return the goods unless requested so to do by the Company.
(f) For the purpose of these Conditions and in the absence of evidence to the contrary goods supplied at any time by the Company to the Buyer shall be deemed to have been resold used or processed in the order in which they were supplied.
25. If the Buyer: –
(a) defaults in or commits any breach of any of its obligations (including as to payment of price) to the Company hereunder or
(b) is involved in any legal proceedings in which solvency is a question or
(c) is a Company and any meeting is convened or resolution is passed or petition is presented (otherwise than for reconstruction or amalgamation) to wind it up or a receiver is appointed or
(d) ceases or threatens to cease carrying on trade.
Then in each such case the Company shall immediately become entitled (without prejudice to its other claims and rights under the contract) to suspend further performance of the contract for such time as it shall in its absolute discretion think fit or (whether or not notice of such suspension shall have been given) to treat the contract as wrongfully repudiated by the Buyer and forthwith terminate the contract.
Notwithstanding any such termination, the Customer shall pay to the Company for all work done, materials used and goods delivered up to and including the date of termination and shall in addition indemnify the Company against any resulting loss, damage or expense incurred by the Company in connection with the non performance of the contract including the cost of any material, plant or tools used or intended to be used therefore and the cost of labour and other overheads including a percentage in respect of profit.
LIMITATION OF LIABILITY
26. It is expressly stipulated that in the event of any claim on any grounds being made by the Buyer against the Company in respect of the goods or any matter arising from or in connection to the contact relating thereto the liability of the Company shall be limited (in respect of each claim or series of connected claims) to the invoice value of the goods and under no circumstances shall the Company be under any further liability to the Buyer whether for loss of profit or for any other direct or consequential loss howsoever arising.
27. No failure, forbearance, delay or indulgence by the Company in enforcing its right shall prejudice or restrict such rights and no waiver of any such rights or any breach of any contractual term shall be deemed to be a waiver of any other right or of any other breach.
28. All contracts shall be governed by English law in the event of any dispute whether of interpretation or otherwise or as to the liability either of the Company or the Buyer arising out of the sole use or operation or failure to operate of the goods or of any part thereof the same shall be determined by the English courts of the law to whose jurisdiction the Company and the Buyer hereby submit.
29. Any notice to be given by either party to the other shall be in writing and any notice or other document may be served either by delivering it by hand or by sending it by post or fax to the address of the Company appearing in the Company’s quotation and in the case of the Buyer to the address of the Buyer appearing on the Company’s quotation or such other address as the Buyer may from time to time have communication to the Company in writing for the service of notices upon it. Service by delivery by hand shall be deemed to be effected upon delivery to the relevant address, service by post two days following the date of posting and service by fax upon the transmission of the relevant communication and the receipt by the transmitting fax machine of the appropriate answer back code.
30. These Conditions supersede all previous UK conditions of sale of the Company.
31. (a) If at any time one or more of the above Conditions becomes in whole or in part invalid illegal or unenforceable in any respect under the law the validity legality and enforceability of the remaining provisions thereof and of the other Conditions herein shall not in any way be affected or impaired thereby.
(b) the sub heading of these Conditions are not to be regarded as part thereof.
32. (i) without prejudice to any other rights and remedies which the Company may have, the Company shall in respect of all debts of the Buyer to the Company have a general lien on all tools, goods and other property belonging to the Buyer in the Company’s possession (whether worked on or not).
(iii) The Company shall be entitled upon the expiration of 14 days notice to the Buyer, to dispose of such tools, goods or property as it thinks fit and apply any proceeds of sale thereof towards the payment of such debts
VALUE ADDED TAX
33. All prices and charges quoted above and any associated fees are exclusive of Value Added Tax, which will be added in accordance with prevailing legislation.
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