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Saturday, May 10th 2008
INTERPRETATION
In these Conditions ‘Buyer’: means
the person who accepts a quotation of the Seller
for the sale of the Goods or whose order for the
Goods is accepted by the Seller. ‘Goods’:
means the Goods (including any installment of
the Goods or any parts of them) which the Seller
is to supply in accordance with these Conditions.
‘Seller”: means Barwood Products Limited.
‘Conditions’: Means the standards
terms and conditions of sale set out in this document
and (unless the context otherwise requires) includes
any special terms and conditions agreed in writing
between the Buyer and the Seller. ‘Contract’:
means the Contract for the purchase and sale of
the Goods. Any reference in these Conditions to
any provision of a statute shall be construed
as a reference to that provision as amended, re-enacted
or extended at the relevant time. The headings
in these Conditions are for convenience only and
shall not affect their interpretation. All other
words and expressions are to be given their normal
English meaning taken in the context of the Contract.
BASIS OF THE SALE
The Seller
shall sell and the Buyer shall purchase the Goods
in accordance with any written quotation of the
Seller which is accepted by the Buyer, or any
written order of the Buyer which is accepted by
the Seller, subject to the exclusion of any other
terms and conditions subject to which any such
quotation is accepted or purported to be accepted,
or any such order is made or purported to be made,
by the Buyer. No conditions attached to endorsed
upon or delivered with any document of the Buyer
shall have effect in relation to the Contract.
These terms and conditions can only be altered
or qualified by a document signed by a director
of the Seller setting out in full all the relevant
alterations and qualifications. The Seller’s
employees or agents are not authorised to make
any representations concerning the Goods 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. Acceptance of delivery of the
Goods shall constitute acceptance of these Conditions
where acceptance has not previously been communicated
by the Buyer to the Seller.
1. ORDERS AND SPECIFICATIONS
1.1 No order submitted by the Buyer shall be deemed
to be accepted by the Seller unless and until
confirmed in writing by the Seller’s authorised
representative.
1.2 The quantity, quality and description of and
any specification for the Goods shall be those
set out in the Seller’s quotation (if accepted
by the Buyer) or the Buyer’s order (if accepted
by the Seller).
1.3 The Seller reserves the right to make any
changes in the specification of the Goods which
are required to conform with any applicable statutory
or EC requirements , or which do not materially
and detrimentally affect their quality or performance.
1.4 No order which has been accepted by the Seller
may be cancelled by the Buyer except with the
agreement in writing of the Seller and on terms
that the Buyer shall indemnify the Seller in full
against all loss (including loss of profit), costs
(including the cost of all labour and materials
used), damages, charges, and expenses incurred
by the Seller as a result of the cancellation.
2. PRICE OF THE GOODS
2.1 The price of the Goods 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 published price list
current at the date of acceptance of the order.
All prices quoted are valid for 14 days only or
until earlier acceptance by the Buyer, after which
time they may be altered by the Seller without
giving notice to the Buyer.
2.2 The Seller reserves the right by giving notice
to the Buyer at any time before delivery to increase
the price of the Goods to reflect any increase
in the cost to the Seller which is due to any
factor beyond the control of the Seller (such
as, without limitation, any foreign exchange fluctuation,
currency regulation, alteration of duties, increase
in the costs of labour, materials or other costs
of manufacture), any change in delivery dates,
quantities or specifications for the Goods which
is requested by the Buyer, or any delay caused
by any instructions of the Buyer or failure of
the Buyer to give the Seller adequate information
or instructions.
2.3 Except as otherwise stated under the terms
of any quotation or in any price list of the Seller,
and unless otherwise agreed in writing between
the Buyer and the Seller, all prices are given
by the Seller on an ex works basis, and where
the Seller agrees to deliver the Goods otherwise
than at the Seller’s premises, the Buyer
shall be liable to pay the Seller’s charges
for transport, packaging and insurance. No refunds
are payable for return of packaging.
2.4 The price is exclusive of any applicable Value
Added Tax, which the Buyer shall be additionally
liable to pay to the Seller.
2.5 The cost of carriage and packaging if required
by the Buyer shall unless otherwise agreed by
the Seller in writing, be charged extra.
3. TERMS OF PAYMENT
3.1 Subject to any special terms agreed in writing
by the Buyer and the Seller the Seller shall be
entitled to invoice the Buyer for the price of
the Goods on or at any time after delivery of
the Goods unless the Goods are to be collected
by the Buyer or the Buyer wrongfully fails to
take delivery of the Goods in which event the
Seller shall be entitled to invoice the Buyer
for the price at any time after the Seller has
notified the Buyer that the Goods are ready for
collection or (as the case may be) the Seller
has tendered delivery of the Goods.
3.2 The Buyer shall pay the price of the Goods
by the last day of the month following the month
of invoice, notwithstanding that delivery may
not have taken place and the property of the Goods
has not passed to the Buyer.. The time of payment
of the price shall be of the essence of the contract.
Receipts for payment will be issued only upon
request.
3.3 Where the Goods are delivered by installments
the Seller may invoice each installment separately
and the Buyer shall pay such invoices in accordance
with these conditions.
3.4 If the Buyer fails to make any payment on
the due date then, without prejudice to any other
right or remedy available to the Seller, the Seller
shall be entitled to: 3.4.1 cancel the contract
or suspend any further deliveries or performance
to the Buyer ; 3.4.2 appropriate any payment made
by the Buyer to such of the Goods (or the goods
supplied under any other contract between the
Buyer and the Seller) as the Seller may think
fit (notwithstanding any purported appropriation
by the Buyer) ; and 3.4.3 charge the Buyer interest
(both before and after any judgement) on the amount
unpaid, at the rate of 4 per cent per annum above
Barclays Bank PLC base rate from time to time,
until payment in full is made (a part of a month
being treated as a full month for the purpose
of calculating interest).
3.5 No disputes arising under the Contract and
no delays beyond the control of the Seller shall
interfere with the prompt payment in full by the
Buyer.
3.6 The Buyer shall reimburse the Seller any legal
and other costs incurred by the Seller in enforcing
the terms of the Contract, such reimbursement
to be on a full indemnity basis.
4. DELIVERY
4.1 Delivery of the Goods shall be made by the
Buyer collecting the Goods at the Seller’s
premises at any time after the Seller has notified
the Buyer that the Goods are ready for collection
or, if some other place for delivery is agreed
by the Seller, by the Seller delivering the Goods
to that place.
4.2 Any dates quoted 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 or performance
shall not be of the essence unless previously
agreed by the Seller in writing. The Goods may
be delivered by the Seller in advance of the quoted
date upon giving reasonable notice to the Buyer.
4.3 Where the Goods are to be delivered in installments
each delivery shall continue a separate contract
and failure by the Seller to deliver any one or
more of the installments in accordance with these
conditions or any claim by the Buyer in respect
of any one or more installments shall not entitle
the Buyer to treat the Contract as a whole as
repudiated.
4.4 The Seller will endeavour to comply with reasonable
requests by the Buyer for postponement of delivery
but shall be under no obligation to do so. Where
delivery is postponed at the Buyer’s request
the Buyer shall pay all costs and expenses (including
storage, insurance and transportation) occasioned
thereby.
4.5 If the Buyer refuses or fails to take delivery
of the Goods or refuses or fails to give the Seller
adequate delivery instructions at the time stated
for delivery (otherwise than by reason of any
cause beyond the Buyer’s reasonable control
or by reason of the Seller’s fault) then,
without prejudice to any other right or remedy
available to the Seller. the Seller may: 4.5.1
store the Goods until actual delivery and charge
the Buyer for the reasonable costs (including
insurance) of storage ; or 4.5.2 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.
4.6 Unless otherwise expressly agreed in writing
by the Seller any packaging supplied by the Seller
is intended to be only sufficient to protect the
Goods for all normal conditions of transit and
for the normal period of transit only.
5. DEFECTS
5.1 The Buyer shall have no right or claim for
shortages or defects apparent on visual inspection
unless : 5.1.1 the Buyer inspects the Goods immediately
on arrival at its premises or other agreed destination
and 5.1.2 A written complaint is made to the Seller
within 7 days of receipt of the Goods or such
shorter period as the carriers conditions (if
applicable) require specifying the shortage or
defect and 5.1.3 the Seller is given an opportunity
to inspect the Goods and investigate any complaint
before any use is made of the Goods. If a complaint
is not made to the Seller as herein provided or
the Goods shall be deemed to be in all respects
in accordance with the contract and the Buyer
shall be bound to pay for the same accordingly.
5.2 Whether or not the Seller arranges delivery
the Seller is in no way responsible for the delivery
of the Goods and is in no way liable for claims
for loss or damage in transit which must be made
by the Buyer against the Carrier in accordance
with the Carrier’s conditions.
5.3 All allegations as to total non-delivery of
any consignment of the Goods must be made by the
Buyer in writing to the Carrier and to the Seller
within 10 days of the date of the Seller’s
advice note or invoice or other notification of
despatch, or within such shorter time limit as
may be specified in any conditions of the Carrier.
5.4 Failure by the Buyer to comply with the provisions
hereof shall render the Buyer liable for any temporary
or permanent loss of the Goods and all additional
costs and expenses of the Seller in relation thereto.
5.5 The Buyer shall have no claim in respect of
defects not apparent on visual inspection at the
time of delivery unless : i) a written complaint
is sent to the Seller as soon as reasonably practicable
after the defect is noticed and no use is made
of the Goods thereafter and no alteration made
thereto by the Buyer before the Seller is given
the opportunity in accordance with sub-paragraph
5.6of this condition to inspect the Goods ; and
ii) the complaint is sent within 1 month of the
date of delivery by the Seller.
5.6 The Seller may within 30 days of receiving
such a written complaint inspect the Goods and
the Buyer if so required by the Seller shall take
all steps necessary to enable the Seller to do
so.
6. RISK AND PROPERTY
6.1 Risk shall pass to the Buyer so that the Buyer
is responsible for all loss damage or deterioration
to the Goods. 6.1.1 in the case of Goods to be
delivered at the Seller’s premises; when
the Seller notifies the Buyer that the Goods are
available for collection ; or 6.1.2 in the case
of Goods to be delivered otherwise than at the
Seller’s premises when the Goods or a relevant
part thereof leave the premises of the Seller
whether or not the Seller arranges transport and
where the Goods are delivered by carrier any claims
for loss or damage in transit must be made by
the Buyer against the carrier in accordance with
the carrier’s conditions.
6.2 Notwithstanding delivery and the passing of
risk in the Goods, or any other provision of these
Conditions, the property in the Goods shall not
pass to the Buyer until the Seller has received
in cash or cleared funds payment in full of the
price of the Goods and all other Goods agreed
to be sold by the Seller to the Buyer for which
payment is then due.
6.3 Until such time as the property in the Goods
passes tom the Buyer, the Buyer shall hold the
Goods as the Seller’s fiduciary agent and
bailee and shall keep the Goods separate from
those of the Buyer and third parties and properly
stored, protected and insured and identified as
the Seller’s property.
6.4 Until such time as the property in the Goods
passes to the Buyer (and provided the Goods are
still in existence and have not been resold),
the Seller shall be entitled at any time to require
the Buyer to deliver up the 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 the Goods are stored and repossess
the Goods.
6.5 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 shall (without prejudice
to any other right or remedy of the Seller) forthwith
become due and payable.
7. WARRANTIES AND LIABILITY
7.1 Subject to the conditions set out below the
Seller solely and exclusively warrants that unless
otherwise specifically agreed in writing Goods
supplied by the Seller will correspond with their
specification and will be free from defects in
material and workmanship at the time of delivery.
7.2 The above warranty is given by the Seller
subject to the following conditions : 7.2.1 the
Seller shall be under no liability in respect
of any defect arising from fair wear and tear,
wilful damage, negligence, abnormal working conditions,
misuse or alteration or repair of the Goods without
the Seller’s approval or replacement parts
which are not in accordance with the original
specification. 7.2.2 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 has not been paid by
the due date for payment.
7.3 Subject as expressly provided in these Conditions,
all warranties, conditions or other terms implied
by statute or common law are excluded to the fullest
extent permitted by law.
7.4 Where any valid claim in respect of any of
the Goods which is based on any defect in the
quality or condition of the Goods or their failure
to meet specification is notified to the Seller
in accordance with these Conditions, the Seller
shall be entitled at its option to replace the
Goods (or the part in question) or make good the
defect in the Goods or, at the Seller’s
sole discretion, refund the Buyer the price of
the Goods (or a proportionate part of the price),
the Seller shall have no further liability to
the Buyer PROVIDED THAT : 7.4.1 the defective
Goods shall be returned carriage paid to the Seller
whereupon they shall become the property of the
Seller ; 7.4.2 in the event that the Buyer requests
the Seller’s personnel to attend at its
premises to repair or replace the Goods, the Seller
shall be entitled to charge for travelling and
labour at its prevailing standard rates.
7.5 Any warranty by the Seller is intended solely
for the benefit of the Buyer. All claims hereunder
must be made by the Buyer and not by any other
person, firm or company who may have possession
of the Goods.
7.6 Except in respect of death or personal injury
caused by the Seller’s negligence, the Seller
shall not be liable to the Buyer by reason 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), costs, expenses or other claims for
consequential compensation whatsoever (and whether
caused by negligence of the Seller, its employees
or agents or otherwise) which arise out of or
in connection with the supply of the Goods or
their use or resale by the Buyer except as expressly
provided in these Conditions.
7.7 The Seller shall not be liable to the Buyer
or be deemed to be in breach of the Contract by
reason of any delay in performing or any failure
to perform any of the Seller’s obligations
in relation to Goods or Services, if the delay
or failure was due to any cause beyond the Seller’s
reasonable control including in particular : 7.7.1
act of God, explosion, flood, tempest, fire or
accident. 7.7.2 war or threat of war, sabotage,
insurrection, civil disturbance, or requisition
; 7.7.3 acts, restrictions, regulations, bye-laws,
prohibitions, or measures of any kind on the part
of any governmental, parliamentary or local authority
; 7.7.4 import or export regulations or embargoes
; 7.7.5 strikes, lock-outs, or other industrial
actions or trade disputes (whether involving employees
of the Seller or of a third party) ; 7.7.6 difficulties
in obtaining raw materials, labour, fuel, parts
or machinery ; 7.7.7 power failure or breakdown
in machinery.
7.8 The Seller does not warrant the fitness or
suitability of any Goods supplied for any purpose
or application and the implied warranties and
conditions contained in section 13, 14 and 15
of the Sale of Goods Act 1979 (as amended by the
Sale and Supply of Goods Act 1994) and any other
conditions or warranties implied by trade custom
or usage are hereby expressly excluded.
7.9 The Buyer agrees that apart from the express
terms contained herein or in the quotation or
in any document expressly stipulated therein to
form part of the Contract and to be outside the
provisions of this condition no statement or representation
has been made by the Seller relating to the Goods
supplied or if any such statement or representation
has been made the Buyer warrants that he understood
it to be a statement of opinion only and did not
rely on it.
8.INSOLVENCY OF BUYER
8.1 This clause applies if : 8.1.1 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 the purposes of amalgamation or reconstruction)
; or 8.1.2 an encumbrancer takes possession or
a receiver is appointed of any of the property
or assets of the Buyer ; or 8.1.3 the Buyer ceases,
or threatens to cease, to carry on business ;
or 8.1.4 the Seller reasonably apprehends that
any of the events mentioned above is about to
occur in relation to the Buyer and notifies the
Buyer accordingly.
8.2 Without prejudice to any other right or remedy
available to the Seller if this condition applies
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 but not paid for, the
price shall become immediately due and payable
notwithstanding any previous agreement or arrangement
to the contrary.
9.OWNERSHIP AND RETENTION OF TITLE
Equitable and beneficial ownership of any goods
supplied will remain with the Seller until all
monies outstanding are paid in full by the Buyer
although risk will pass to the Buyer upon delivery
of the Goods. The Buyer will undertake to properly
store and insure the Goods and have them identified
as the Buyers property. In the event of default
of payment on the due date the Seller will be
entitled to repossess any Goods which remain its
property. The Buyer shall afford access at such
times as required by the Seller to any premises
occupied by the Buyer where the Goods might be
situated.
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