In these Conditions of Sale, “the Seller” means Whitecroft Essentials (Lydney) Limited whose office is at Vantage Point Business Village, Mitcheldean, GL17 0DD; “the Purchaser” means the person, firm or company from whom an order is accepted by the Seller; “Goods” means the goods which are the subject matter of such an order, and “the Contract” means the contract of sale of the Goods by the Seller.
2 THE AGREEMENT
2.1 The Contract and all agreements from time to time entered into between the Seller and the Purchaser which provide for the sale of any goods by the Seller to the Purchaser shall be deemed to incorporate these conditions which represent the complete agreement of the Seller and the Purchaser with regard to the Goods except as may be otherwise specifically agreed in writing by the Seller. These conditions shall override any terms and conditions stipulated, incorporated, or referred to by the Purchaser in any order, correspondence, negotiations or in any other way.
2.2 No order is binding on the Seller until accepted by the Seller’s issue of an official invoice notwithstanding any act or statement of the Seller prior to such an issue.
2.3 Without prejudice to the foregoing, acceptance of delivery of the Goods by the Purchaser shall be deemed to constitute acceptance of these conditions to the exclusion of all other terms and conditions whatsoever.
2.4 Catalogues, price lists, advertisements and other published information are only indications of the type of products available and shall not (except to the extent that any such document sets out these Conditions) form part of the Contract or any other agreement with the Purchaser nor be considered as a collateral warranty or representation inducing the same.
2.5 If any term or condition herein (or part hereof) is held to be invalid for any reason by any court or competent authority it is to that extent to be deemed removed from the Contract without prejudice to the validity or effectiveness of the remaining terms and conditions hereof.
3.1 The price of the Goods shall be as set out in the general price list of the Seller in force at the date of issue of the Seller’s invoice, or as otherwise agreed in writing between the Seller and the Purchaser.
3.2 Unless otherwise stated, the price of the Goods is inclusive of the cost of packaging, freight, insurance, delivery charges and all applicable taxes (including without prejudice to the generality of the foregoing Value Added Tax), duties, tariffs and such charges of any nature whatsoever imposed either directly in respect of the sale or supply of Goods or payments for them.
3.3 The Purchaser shall not be entitled to make any deduction from the price of the Goods in respect of any alleged rights to set-off or counter-claims unless both the validity and the amounts thereof have been expressly acknowledged and admitted by the Seller in writing.
4 PAYMENT TERMS
4.1 Unless other wise agreed or specified by the Seller in writing, payment for the Goods shall be due in full (together with any Value Added Tax chargeable by the Seller in respect of the supply of the Goods) on the last day of the calendar month following that in which the Seller’s invoice in respect thereof is issued.
4.2 The Seller’s invoice may be issued at any time after the Goods are ready for despatch.
4.3 Time for payment of the price shall be of the essence and without prejudice to any other right which the Seller may have. The Seller shall be entitled to charge interest (such interest to accrue both before and after judgement and to be payable on demand) at the rate of two per cent (2%) per month above the base rate for the time being of National Westminster Bank plc and proportionately for any lesser period on overdue amounts due under the Contract from the due date for payment thereof, such interest to accrue from day to day.
4.4 The Seller reserves the right to suspend further deliveries and/or to cancel any allowance for further credit:-
4.4.1 in the event of any payments under the Contract (or any other Contract with the Purchaser) not being made when due, or
4.4.2 if the Seller in its sole discretion at any time considers that the financial condition of the Purchaser has ceased to justify any such terms being permitted, or
4.4.3 if in the event of the Seller instituting proceedings against the Purchaser for the recovery of any monies unpaid under the Contract or any other agreement with the Purchaser, the Purchaser shall not have paid all costs incurred by the Seller in respect of such proceedings.
5 DELIVERY AND RISK
5.1 All quotations and Contracts are for delivery of the Goods ex the Seller’s works and delivery of the Goods to a carrier shall constitute delivery thereof to the Purchaser. Any delivery date is approximate only and is not contractual commitment.
5.2 Any claim for shortage or damage shall be directed by the Purchaser to the carrier, (with a copy of such claim to the Seller) within seven days of receipt of the Goods. In the event that delivery of the Goods is not effected within fourteen days of the estimated date of delivery (provided by the Seller), the Purchaser shall immediately notify the Seller in writing.
5.3 The risk in the Goods shall pass to the Purchaser on delivery of the Goods to the carrier. If the Purchaser requires postponement of delivery beyond the agreed delivery date, the Seller may at its option exercisable by notice in writing to the Purchaser treat the risk in the Goods as having passed to the Purchaser and store the goods at the Purchaser’s expense (but without liability).
5.4 Unless otherwise agreed in writing, the Goods included in each delivery (or part delivery) shall be deemed to be sold under a separate contract. Neither failure on the Seller’s part to make any delivery (or part delivery) in accordance with the Contract, nor any claim by the Purchaser in respect of such delivery (nor part delivery) shall entitle the Purchaser to reject the balance of the Goods agreed to be purchased by the Purchaser.
5.5 The Purchaser shall not be entitled to reject the Goods by reason only of short delivery thereof.
6.1 On all orders the Seller shall have the right to despatch and bill for a quantity of goods greater or less than the exact quantity ordered up to a variation of ten per cent (10%).
6.2 The minimum carriage paid order value is £200.
7 PASSING OF PROPERTY
7.1 Until the price of this and any other Contract between the Company and the Customer is paid in full the title to and property in the goods shall remain vested in the Company (and shall if the Company so requires be marked as belonging to the Company). The Company may at any time recover and resell the Goods if any of the events specified in Condition 7.5 below occur and or if any sum owed by the Customer to the Company under any contract is not paid on the due date for payment, the company, its servants or agents and all necessary transport being entitled to free and unrestricted entry upon any location where the goods are situated.
7.2 The Purchaser shall be entitled to resell the Goods in the ordinary course of its business, notwithstanding that the property therein shall not have passed to the Purchaser, unless and until the Purchaser fails to pay any amount whatsoever to the Seller when due, or the Seller directs the Purchaser not to resell any of the Goods PROVIDED always that all proceeds of such resale of the Goods (or any part thereof) shall be held in trust by the Purchaser for the Seller until payment in full has been made of all monies due to the Seller under the Contract. The Purchaser shall, if the Seller so requires, store the Goods separately and shall clearly mark them as the property of the Seller.
7.3 Notwithstanding the provisions of this condition 7, the Seller shall be entitled to bring an action against the Purchaser for the whole (or any part) of the price of the Goods in the event of non payment thereof by the due date for payment as if the property in the Goods had already passed to the Purchaser.
7.4 Notwithstanding the foregoing, the Purchaser may not, without prior written permission of the seller, return the Goods (or any part thereof) to the Seller or refuse or delay payment for the Goods or refuse delivery thereof. The Seller shall not be under any liability whatsoever for Goods returned by the Purchaser without such permission.
7.5 In the event that the Purchaser shall commit an act of bankruptcy, or have a receiving order made against him, or shall make any arrangement with his creditors or any assignment for the benefit of such creditors, or if distress or execution shall be levied or threatened upon any of his property, or any judgement against him shall remain unsatisfied for a period of more than fourteen days or (if the Purchaser is a body corporate) a petition for compulsory winding-up shall be presented upon the ground of insolvency or if the Purchaser shall not have paid all monies in full under the Contract when due, the Seller shall automatically be deemed to have requested the Purchaser to deliver up all Goods supplied by the Seller which have not become the Purchaser’s property and the Purchaser shall no longer be in possession thereof with the Seller’s consent.
8 STATUTORY LIABILITY
8.1 Nothing in these conditions shall be interpreted as excluding or restricting any legal liability of the Seller for death or personal injury resulting from the negligence of the Seller, its employees, agents or sub-contractors or as excluding or restricting any of the Seller’s legal obligations arising under Section 12 of the Sale of Goods Act 1979 (as amended).
8.2 Subject to the provisions of sub-clause 8.1 above, the Seller’s liability to the Purchaser in respect of the goods shall not in any manner whatsoever (whether under the law of contract, tort or otherwise) exceed the price actually paid by the Purchaser for the Goods.
8.3 Subject to the provisions of this condition, the Seller shall in no circumstances, be liable for loss of profit, income, goodwill or any other economic loss, or any loss arising from any claim against the Purchaser by any third party, or any consequential or indirect loss, or damage of any kind whatsoever caused or arising.
9.1 The Seller warrants the Goods against defects in design, materials and workmanship which render the Goods of unmerchantable quality and which becomes apparent within the Warranty Period which shall be the period expiring three months after the date of the issue of the Seller’s invoice (“the Warranty Period”).
9.2 The Seller’s obligation under this warranty is limited to repairing, or at its option, replacing on an exchange basis any Goods (or part thereof) which are delivered with or develop any defect under normal and proper use within the Warranty Period subject to payment by the Purchaser of the Seller’s standard charges for labour in connection with such repairs and/or replacements.
9.3 In the event of the Purchaser becoming aware of a defect in the Goods during the Warranty Period the Purchaser shall promptly supply the Seller with written particulars of such defect and shall afford the Seller and/or its agents full and proper information and assistance to enable them to verity the notified particulars ascertain the nature and cause of the defect and to carry out the warranty obligations hereunder.
9.4 The above warranty shall not apply to any defect caused in whole (or in part) by any alteration and/or addition to the Goods (other than by the Seller) or by the use of storage of the Goods in a manner contrary to any instructions of the Seller, or for purpose for which the Goods were not designed, or by faulty installation, maintenance or repair by the Purchaser or any third party.
9.5 The Seller shall be under no liability whatsoever to repair, replace or make good any loss, damage or defect which results from wear and tear, accident, neglect, misuse or events referred to in condition 12 occurring after the physical delivery of the Goods to the Purchaser (or its agents).
9.6 When any defective Goods are replaced, the provisions of this condition shall apply to the replacement Goods as if the Warranty Period has commenced on the date of such replacement.
9.7 The cost to the Seller of and incidental to any return by the Purchaser or the Seller of any of the Goods delivered hereunder (arising from a warranty claim made by the Purchaser) shall, except to the extent that the Seller has accepted responsibility hereunder, be the responsibility of the Purchaser who shall indemnify the Seller against any such costs including, but without limitation to the generality of the foregoing, costs of transport and testing or any other cost or loss to the Seller arising therefrom.
9.8 The Purchaser shall be entitled to the benefit of the aforementioned warranty which is given in lieu of and replaces, excludes and extinguishes all and every condition, warranty or representation whatsoever whether express or implied by statute, common law, trade usage, custom or otherwise howsoever.
The Purchaser agrees that it is best able to estimate the extent and nature of the insurance cover suitable for its business and property from time to time and can effect at more economic rates than the Seller such appropriate insurance cover (including cover against losses, damage, costs, claims and expenses referred to in conditions 8 or 11) and the Purchaser therefore acknowledges that it is reasonable for the Seller to sell the Goods and fix their purchase price on the basis of the exclusions and limitations of liability and the indemnity set out in these conditions. The Purchaser agrees that it will be responsible for effecting insurance cover (and will produce evidence thereof at the Seller’s request) as above mentioned as may be appropriate to its business and property including (but not limited to) any required insurance cover in respect of any loss or damage of whatsoever kind or howsoever caused, whether by reason of the negligence of the Seller or otherwise to premises, plant or other physical property and the Seller shall have no liability in respect of any such loss or damage.
11 INDEMNITY – THIRD PARTY CLAIMS
The Purchaser agrees to indemnify the Seller against any loss, damage, costs, claims or expenses incurred by the Seller in respect of any liability established against the Seller by a third party arising out of or in connection with any of the Goods, and to ensure that the Purchaser’s insurers shall in no circumstances whatsoever have any rights or remedies against the Seller additional to those of the Purchaser.
12 FORCE MAJEURE AND EVENTS BEYOND THE CONTROL OF THE SELLER
12.1 The Seller shall have no liability under the contract in respect of any failure or delay in fulfilling any of the Seller’s obligations to the extent that fulfilment thereof is prevented, frustrated, impeded and/or delayed as a consequence of “force majeure” and/or any occurrence whatsoever beyond the control of the Seller including without prejudice to the generality of the foregoing.
12.1.1 Compliance with any order, regulation, request or control of any national or local authority, governmental department or other competent authority or any country whether or not legally enforceable; or
12.1.2 and delays in, or cancellations of deliveries, or provision of services by third parties or shortages of Goods, materials or parts; or
12.1.3 and strikes, lock-outs disputes whether involving the Seller’s employees or others, fire, explosion, accident, calamity, or civil disturbance, action of elements, national calamity or Act of God; or
12.1.4 failure in whole (or in part) of any power or energy supply.
12.2 The Seller undertakes however to make every reasonable endeavour within its power to overcome difficulties arising in connection therewith, but in the event of shortages of the Goods, or of available resources for their production, storage or delivery arising from any of the events or circumstances referred to in sub-clause 12.1 of this Condition, the Seller reserves the right to either terminate the Contract with the Purchaser or to allocate as it may think fit its available goods and resources between customers with whom it has contractual obligations in respect thereof and shall not be obliged to purchase any goods from third parties to make good any such shortages.
13 LETTERS PATENT
The Purchaser shall promptly inform the Seller of any threatened claims as to the alleged infringement of letters patent, or other third party rights by or in connection with the Goods and shall, if so required by the Seller’s expense, take all reasonable steps to enable the Seller itself to defend any such claim.
14 CONFIDENTIAL INFORMATION
The Purchaser shall treat all and any drawings, procedures, instructions, documents and other information of any kind whatsoever supplied by the Seller to the Purchaser as strictly confidential (except to the extent that any such information is available in the public domain) and shall not without the prior written consent of the Seller, disclose or part with possession of any such documents or information otherwise than in connection with the Goods to which they relate.
15 GOODS MANUFACTURED TO PURCHASER’S SPECIFICATIONS
15.1 The Seller accepts no responsibility for the accuracy of information or drawing supplied by the Purchaser.
15.2 The Purchaser shall indemnify the Seller from and against all and any actions, costs and proceedings which arise due to the manufacture of Goods to the drawings and specifications of the Purchaser where such drawings and specifications shall be at fault, or where it is alleged that they involve an infringement of a patent, registered design or other exclusive right or the provisions of any statute, statutory instrument or regulation.
16 HEALTH AND SAFETY
The Purchaser agrees to pay due regard to any information or advice relating to the use of the Goods which the Seller may at any time furnish to it and agrees that before the Goods are used it will, if requested by the Seller, furnish the Seller with a written undertaking to take any steps which the Seller may specify with a view to ensuring that the Goods will be safe and without risk to health when used.
17 CANCELLATION AND AMENDMENT
No cancellation or amendment to the Contract shall be binding on the Seller, unless agreed in writing by a person duly authorised on its behalf and on the strict condition that all and any costs and expenses incurred by the Seller up to the time of the cancellation or arising out of the amendment will be reimbursed by the Purchaser to the Seller forthwith.
The Purchaser shall not assign, or otherwise transfer all or any of its rights, interests or obligations under the Contract without the prior written consent of the Seller.
The rights of the Seller shall not be prejudiced or restricted by any indulgence or forbearance extended to the Purchaser and no waiver of any breach shall operate either as a waiver of any other breach or as a waiver or any subsequent or continuing breach.
20 DESIGN ALTERATIONS
The Seller shall be entitled at any time to change the design or finish of its products without prior notice and the Purchaser shall not by reasons thereof be entitled to reject the goods (or any part thereof).
21 ENGLISH LAW AND JURISDICTION
The formation, construction and performance of the Contracts shall be governed in all respects by English Law.
The headings of these conditions do not form part of the conditions and shall not affect the interpretation thereof.