Conditions of sale

Conditions of Sale

General

1.1 In these Conditions :

‘COMPANY’ means Sydney Heath & Son Limited (registered in England) under number 2696136.

‘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.

‘CONTRACT’ means the contract for purchase and sale of the Goods.

‘CUSTOMER’ means the person who accepts a quotation of the Company for the sale of the Goods or services or whose order for the Goods or services is accepted by the Company.

‘GOODS’ means the Goods (including any installment of the Goods or any parts for them) which the Company is to supply in accordance with these conditions.

‘WRITING’ includes telex, cable, facsimile transmission and comparable means of communication.

1.2 These Conditions form part of all contracts for the sale of Goods or for the doing of work 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 herein. No modification of these Conditions shall be binding upon the Company unless such modifications shall first have been specifically authorised in writing by a Director of the Company .

1.3 The Company’s employees or agents are not authorised to make any representations concerning the goods or services. The Customer hereby acknowledges that in entering the Contract either (i) it does not rely 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.

1.4 A quotation is not an offer and may be withdrawn without notice. Any order given in respect of a quotation is not binding upon the Company until accepted by it in writing or by the Company taking steps to implement the same.

1.5 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.

1.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.

Payment and Prices

2.1 Customers who have no ledger account with the Company are requested to send the remittance with their order to avoid delay in dispatching Goods. Subject thereto the Company shall be entitled to invoice the Customer for the price of the Goods or the services at any time up to [four] working days prior to delivery unless the Goods are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods, in which event the Company shall be entitled to invoice the Customer for the price at anytime after the Company has notified the Customer that the Goods are ready for collection or (as the case may be) the Company has tendered delivery of the Goods. Unless otherwise agreed in writing terms of payment are net cash (no discount being allowed) 30 days or not later than the end of the month following the month in which the invoice is dispatched by the Company and the Company shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the Contact. All monies due hereunder shall be payable together with interest on a daily basis as from the due date of payment at the rate of 2% above Lloyds Bank base rate from time to time per annum both before and after judgement until actual payment (a part of a month being treated as a full month for the purpose of calculating interest). In the event of any amount not being paid on the due date the Company reserves the right (any previous waiver notwithstanding) :-

(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 (ii) 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 think (notwithstanding any purported appropriation by the Customer); and

2.2 The Company reserves the right to vary the price quoted for Goods in order to conform with the company’s price of such Goods ruling 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 a quotation shall extend for a period of thirty days only from the date of the quotation.

2.3 All prices quoted are exclusive of value added tax and are on an ex-works basis.

2.4 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 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.

2.5 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.

Delivery

3.1 Any periods or dates quoted for delivery are agreed as approximate only and the Company accepts no liability for any loss, injury, damage or expense whatsoever consequent upon delay of delivery of goods. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Company in writing. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer.

3.2 Delivery shall be made at the Company's works unless otherwise agreed in writing.

3.3 Delay due to circumstances outside the control of the Company shall not entitle the Customer to cancel any order or to refuse to accept delivery. Notwithstanding that the title in the Goods may not have passed the risk in the Goods shall pass to the Customer upon delivery to the Customer or any other person for transport to the Customer. Should the Company be prevented from making a delivery owing to any cause whatsoever beyond the Company's control the Company shall be at liberty to cancel or suspend the order without incurring any loss or damages resulting there from.

3.4 No claim for damage in transit or shortage of delivery will be entertained in cases where the Company has agreed to deliver the Goods to the Customer unless a separate notice in writing is given to the carrier concerned and to the Company immediately followed by a detailed and complete claim in writing within three days of delivery. In the event of loss or destruction of the Goods in transit advice of non delivery must be submitted in writing to the carrier and to the Company within twenty one days of the date of consignment 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 but shall be under no further liability to the Customer in respect thereof.

3.5 If the Customer fails to take delivery of the Goods 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 :

3.5.1 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or

3.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.

Retention of Title

4.1 Risk of damage to or loss of the Goods shall pass to the Customer :

4.1.1 in the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Customer that the Goods are available for collection; or

4.1.2 in the case of Goods to be delivered otherwise than at the Company’s premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods.

4.2 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 Customer until the Company has received in cash or cleared funds payment in full of the price of the Goods.

4.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Company’s property, but the Customer shall be entitled to resell or use the Goods in the ordinary course of its business.

4.5 The Customer 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 Company, but if the Customer does so all moneys owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.

Quantity

5.1 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 installments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the installments in accordance with these Conditions or any claim by the Customer in respect of any one or more installments shall not entitle the Customer to treat the Contract as a whole as repudiated.

Quality and Fitness

6.1 Subject to the conditions set out below the Company warrants that the Goods will correspond with their specification at the time of delivery

6.2 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 seven 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 Contact.

6.3 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 be entitled to replace the Goods (or the part in question) free of charge, or at the Company’s sole discretion, 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.

6.4 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 and making recommendations based upon 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

6.5 All conditions warranties whatsoever whether statutory or otherwise are hereby expressly excluded and 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.

6.6 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.

7. Insolvency of the Customer

7.1 This clause applies if :

7.1.1 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

7.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or

7.1.3 the Customer ceases, or threatens to cease, to carry on business; or

7.1.4 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.

7.2 If this clause 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.

8. Export Terms

8.1 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.

8.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 8 shall (subject to any special terms agreed in writing between the Customer and the Company) apply notwithstanding any other provision of these Conditions.

8.3 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.

8.4 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.

8.5 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.

8.6 The Customer will ensure that payment for the goods is made prior to delivery and the Company will dispatch the Goods immediately on receipt of the payment.

9. General

9.1 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.

9.2 No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.

9.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.

9.4 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.

9.5 Any Contract to which these Conditions apply shall be construed and take effect in all respect in accordance with English Law.

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