Conditions of Sale
1. General
1.1. In these Conditions:
2. 'COMPANY' means Sydney Heath & Son Limited (registered
in England) under number 2696136.
3. 'CONDITIONS' means the standard 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 Customer and the Company.
4. 'CONTRACT' means the contract for purchase and sale of the
Goods.
5. 'CUSTOMER' means the person who accepts a quotation from
the Company for the sale of the Goods or whose order for the Goods
is accepted and acknowledged by the Company.
6. 'GOODS' means the goods which the Company is to supply in
accordance with these Conditions.
7. 'WRITING' includes facsimile transmissions, emails and
letters and comparable means of communication.
7.1. These Conditions form part of all Contracts for the sale
of Goods by the Company to the exclusion of any other terms and
conditions except where the Company expressly agrees in Writing to
the contrary and (except as aforesaid) prevail over any conditions
which a Customer's order may purport to impose which said other
conditions shall not apply save (if at all) as may be expressly
incorporated in Writing. No modification of these Conditions shall
be binding upon the Company unless such modifications shall first
have been specifically authorised in Writing by the Company.
7.2. The Company's employees or agents are not authorised to
make any representations concerning the Goods. The Customer hereby
acknowledges that in entering the Contract either (i) it does not
rely on any such representations or (ii) there have not been any
representations made to the Customer by or on behalf of the Company
and there are not any other terms or provisions of the Contract
other than such as may be necessarily incorporated by statute and
there are not any ancillary or collateral agreements associated
with the Contract save any as have been made or recorded in Writing
between the authorised representatives of the parties at or before
the time of making the Contract and have been noted upon the face
of the Contract.
7.3. Any quotation is given on the basis that no Contract
shall come into existence until the Company despatches an
acknowledgement of order to the Customer. Any quotation is valid
for a period of 30 days only from its date, provided that the
Company has not previously withdrawn it.
7.4. Any advice or recommendation given by the Company or its
employees or agents to the Customer or its employees or agents as
to the storage, application or use of the Goods which is not
confirmed in Writing by the Company is followed or acted upon
entirely at the Customer's own risk, and accordingly the Company
shall not be liable for any such advice or recommendation which is
not so confirmed.
7.5. Any typographical, clerical or other error or omission in
any sales literature, quotation, price list, acknowledgement of
order, invoice or other document or information issued by the
Company shall be subject to correction without any liability on the
part of the Company.
8. Payment and Prices
8.1. Customers who have no account with the Company are
requested to send the full remittance with their order to avoid
delay in dispatching Goods.
8.2. The Company shall be entitled to invoice the Customer for
the price of the Goods at anytime after the Company has notified
the Customer that the Goods are ready for collection or
delivery.
8.3. Should a Customer request a later delivery or collection
date than any previously agreed, the Company will be entitled to
invoice the Customer from the date on which the Goods are available
for collection or delivery and not the date on which collection or
delivery is actually made.
8.4. For Customers with accounts, unless otherwise agreed in
Writing, terms of payment are cleared funds within 30 days of the
invoice date and the Company shall be entitled to recover the
price, notwithstanding that delivery may not have taken place and
the title in the Goods not passed to the Customer.
8.5. The time of payment of the price for the Goods shall be
of the essence. All monies due hereunder shall be payable
together with interest on a daily basis as from the due date of
payment at the annual rate of 8% above base lending rate of the
Bank of England from time to time both before and after judgement
until actual payment is made. In the event of any amount not being
paid on the due date the Company reserves the right (any previous
waiver notwithstanding):
8.5.1. to cancel the Contract or withhold any further
deliveries of Goods whether under the same or any other Contract
until all arrears of payment have been settled and or to require
payment in full in advance for any further Goods before making
deliveries of such Goods; and
8.5.2. appropriate any payment made by the Customer to such of
the Goods (or the Goods supplied under any other Contract between
the Customer and the Company) as the Company may decide
(notwithstanding any purported appropriation by the Customer)
8.6. The Company reserves the right to vary the price quoted
for Goods in order to conform with the Company's price of such
Goods prevailing at the date of dispatch or to take into account
any increase in cost to the Company which is due to any factor
beyond its control (such as, without limitation, any foreign
exchange fluctuation, currency regulation, alteration of duties,
increase in the cost of wages salaries or costs of materials)
between the date of the order and the date of delivery unless the
quotation from the Company specifically refers to a fixed price in
which event the fixed price shall be valid for thirty days only
from the date of the quotation.
8.7. All prices quoted are exclusive of value added tax and
are on an ex-works basis.
8.8. The Customer shall not be entitled to withhold a payment
of any amount payable under the Contract to the Company because of
any disputed claim of the Customer (unless the Customer has a valid
court order requiring the Company to pay an amount equal to such
deduction to the Customer) in respect of faulty Goods or any other
alleged breach of Contract by the Company whether arising out of
this Contract or not and nor shall the Customer be entitled to set
off against any amount payable under the Contract to the Company
any monies which are not then presently ascertained and payable to
the Company or for which the Company disputes liability.
8.9. The cost of pallets and returnable containers will be
charged to the Customer in addition to the price of the Goods but
full credit will be given to the Customer provided they are
returned undamaged to the Company before the due payment
date.
9. Delivery
9.1. Delivery shall be made at the Company's place of business
unless otherwise agreed in Writing. The Customer shall take
delivery of the Goods within [5] working days of the Company giving
it notice that the Goods are ready for collection.
9.2. Any periods or dates quoted for delivery to the
Customer's premises are agreed as approximate only and the Company
accepts no liability for any loss, direct or indirect or
consequential, injury, damage or expense whatsoever consequent upon
delay of delivery of Goods nor shall any delay entitle the customer
to terminate or rescind the Contract unless such delay exceeds 180
days. The Goods may be delivered by the Company in
advance of the quoted delivery date upon giving reasonable notice
to the Customer.
9.3. No claim for damage in transit or shortage of delivery
will be accepted in cases where the Company has agreed to deliver
the Goods to the Customer unless a separate notice in Writing is
given immediately to the Company followed by a detailed and
complete claim in Writing within three days of delivery. In the
event of non delivery notification must be submitted in Writing to
the Company within twenty one days of the date when the Goods would
in the ordinary course of events have been received as advised by
the Company to the Customer. Subject to the acceptance of claims
made as aforesaid, the Company will repair or replace free of
charge Goods lost, destroyed or damaged in transit or issue a
credit note for the value of the Goods but shall be under no
further liability to the Customer in respect thereof.
9.4. If the Customer fails to take delivery of the Goods
within [5] days of notification or fails to give the Company
adequate delivery instructions at the time stated for delivery
(otherwise than by reason of any cause beyond the Customer's
reasonable control or by reason of the Company's fault) then,
without prejudice to any other right or remedy available to the
Company, the Company may :
9.4.1. store the Goods until actual delivery and charge the
Customer for the reasonable costs (including insurance) of storage;
or
9.4.2. sell the Goods at the best price readily obtainable and
(after deducting all reasonable storage and selling expenses) and
charge the Customer for any shortfall below the price under the
Contract.
10. Retention of Title
10.1. The Goods are at the risk of the Customer:
10.1.1. from the time of delivery; or
10.1.2. in the case of Goods to be collected from the
Company's premises, at the time when the Company notifies the
Customer that the Goods are available for collection
10.2. Ownership of the Goods shall not pass to the Customer
until the Company has received in full (in cash or cleared funds)
all sums due to it in respect of:
10.2.1. the Goods; and
10.2.2. all other sums which are or which become due to the
Company from the Customer on any account.
10.3. Until ownership of the Goods has passed to the Customer,
the Customer shall:
10.3.1. hold the Goods on a fiduciary basis as the Company's
bailee;
10.3.2. store the Goods (at no cost to the Company) separately
from all other goods of the Customer or any third party in such a
way that they remain readily identifiable as the Company's
property;
10.3.3. not destroy, deface or obscure any identifying mark or
packaging on or relating to the Goods; and
10.3.4. maintain the Goods in satisfactory condition and keep
them insured on the Company's behalf for their full price against
all risks to the reasonable satisfaction of the Company. On request
the Customer shall produce the policy of insurance to the
Company.
10.4. The Customer's right to possession of the Goods shall
terminate immediately if:
10.4.1. the Customer makes any voluntary arrangement with its
creditors or (being an individual or firm) becomes bankrupt or
(being a company) becomes subject to an administration order or
goes into liquidation (otherwise than for the purposes of
amalgamation or reconstruction); or
10.4.2. an encumbrance takes possession, or a receiver is
appointed, of any of the property or assets of the Customer;
or
10.4.3. the Customer ceases, or threatens to cease, to carry
on business; or
10.4.4. the Company reasonably apprehends that any of the
events mentioned above is about to occur in relation to the
Customer and notifies the Customer accordingly.
10.5. If this Condition applies then, without prejudice to any
other right or remedy available to the Company, the Company shall
be entitled to cancel the Contract or suspend any further
deliveries under the Contract without any liability to the
Customer, 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.
10.6. The Company shall be entitled to recover payment for the
Goods notwithstanding that ownership of any of the Goods has not
passed from the Company.
10.7. The Customer grants the Company, its agents and
employees an irrevocable licence at any time to enter any premises
where the Goods are or may be stored in order to inspect them, or,
where the Customer's right to possession has terminated, to recover
them.
10.8. Where the Company is unable to determine whether any
Goods are the goods in respect of which the Customer's right to
possession has terminated, the Customer shall be deemed to have
sold all goods of the kind sold by the Company to the
Customer.
10.9. On termination of the Contract, howsoever caused, the
Company's (but not the Customer's) rights contained in this
Condition 4 shall remain in effect.
11. Quantity
11.1. The delivery of Goods of a quantity more or less than
the quantity ordered by an amount not exceeding 10% shall be a due
performance of the Contract and the Customer shall accept and pay
for pro rata the quantity delivered. Where the Goods are to be
delivered in instalments, each delivery shall constitute a separate
Contract and failure by the Company to deliver any one or more of
the instalments in accordance with these Conditions or any claim by
the Customer in respect of any one or more instalments shall not
entitle the Customer to treat the Contract as a whole as
repudiated.
12. Quality and Fitness
12.1. Subject to the Conditions set out below the Company
warrants that the Goods will correspond with their specification at
the time of delivery.
12.2. Any claim by the Customer which is based on a failure of
the Goods to correspond with specification shall (whether or not
delivery is refused by the Customer) be notified to the Company
within three days from the date of delivery or (where the defect or
failure was not apparent on reasonable inspection) within a
reasonable time after discovery of the defect or failure. If
delivery is not refused, and the Customer does not notify the
Company accordingly the Customer shall not be entitled to reject
the Goods and the Company shall have no liability for such defect
or failure and the Customer shall be bound to pay the price as if
the Goods had been delivered in accordance with the Contract.
12.3. 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
Company in accordance with these Conditions, the Company shall at
the Company's sole discretion be entitled to replace the Goods (or
the part in question), refund to the Customer the price of the
Goods (or a proportionate part of the price), but the Company shall
have no further liability to the Customer.
12.4. Every effort is made by the Company to secure the
highest possible standard of excellence of both material and
workmanship and every care is taken by the Company in giving advice
based upon the information provided by Customers but the
circumstances of use of Goods purchased by Customers being outside
the Company's control the Company is compelled to stipulate that it
makes no representation whatsoever and gives no guarantee
whatsoever in respect of Goods manufactured, sold or supplied by
the Company that the Goods are fit for the Customer's
purpose.
12.5. It is the sole responsibility of Customers to satisfy
themselves as to the suitability for any particular purpose of
Goods manufactured, sold or supplied by the Company. The Company
may at its discretion make available to Customers such sample and
technical data as may be necessary to assist Customers to satisfy
themselves as to such suitability.
12.6. The Goods have a limited shelf life and it is the sole
responsibility of the Customer to use the Goods in the order in
which they were delivered to avoid being unable to use the Goods as
a result of natural deterioration. The Company shall not be
liable for any loss borne by the Customer as a result of natural
deterioration notwithstanding the provision of clauses 6.1 -
6.5.
12.7. Except in respect of death or personal injury caused by
the Company's negligence, the Company shall not be liable to the
Customer by reason of any representation (unless fraudulent), or
any implied warranty, condition or other term, or any duty at
common law, or under the express terms of the Contact, for any
indirect, special or consequential loss or damage (whether for loss
of profit or otherwise), costs, expenses or other claims for
compensation whatsoever (whether caused by the negligence of the
Company, 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 Customer, and the entire liability of the Company
under or in connection with the Contract shall not exceed the price
of the Goods, except as expressly provided in these
Conditions.
13. Export Terms
13.1. In these Conditions 'Incoterms' means the international
rules for the interpretation of trade terms of the International
Chamber of Commerce as in force at the date when the Contract is
made. Unless the context otherwise requires, any term or expression
which is defined in or given a particular meaning by the provisions
of Incoterms shall have the same meaning in these Conditions, but
if there is any conflict between the provisions of Incoterms and
these Conditions, the latter shall prevail.
13.2. Where the Goods are supplied for export from the United
Kingdom, the provisions of this Condition 7 shall (subject to any
special terms agreed in Writing between the Customer and the
Company) apply notwithstanding any other provision of these
Conditions.
13.3. The Customer shall be responsible for complying with any
legislation or regulations governing the importation of the Goods
into the country of destination and for the payment of any duties
on them.
13.4. Unless otherwise agreed in Writing between the Customer
and the Company, the Goods shall be delivered fob the air or sea
port of shipment and the Company shall be under no obligation to
give notice under section 32(3) of the Sale of Goods Act
1979.
13.5. The Customer shall be responsible for arranging for
testing and inspection of the Goods at the Company's premises
before shipment. The Company shall have no liability for any claim
in respect of any defect in the Goods which would be apparent on
inspection and which is made after shipment, or in respect of any
damage during transit.
13.6. The Customer will ensure that payment for the Goods is
made prior to delivery and the Company will despatch the Goods
immediately on receipt of the payment.
13.7. Payment should be made in pounds sterling by credit card
or telegraphic transfer only.
14. General
14.1. 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.
14.2. Any waiver by the Company of any breach or any default
under any provision of the Contract by the Customer shall not be
deemed a waiver of any subsequent breach or default and shall in no
way affect the other terms of the contract.
14.3. If a provision of this agreement (or part of any
provision) is found illegal, invalid or unenforceable, the
provision shall apply with the minimum modification necessary to
make it legal, valid and enforceable
14.4. Customers undertake and agree to bring fully to the
notice of all persons whatsoever with whom they may deal the terms
of these Conditions of Sale.
14.5. The formation, existence, construction, performance,
validity and all aspects of the Contract shall be governed by
English Law and the parties submit to the exclusive jurisdiction of
the English Courts.