In these conditions of sale (“these conditions”) the following words have the following meanings:
“the customer” Means the person, firm or company to or by and on behalf of whom the purchase order is addressed or order placed.
“the contract” Means the contract between the customer and seller consisting of the purchase order and these conditions.
“the goods” Means the product, articles or things described or referred to in the purchase order and these conditions.
“the service” Means any services supplied or work done by the seller whether or not in connection with the goods.
“the price” Means the price of the provision of the goods and/or the services.
“the purchase order” Means the written document indicating the goods and services which the customer wishes to be provided.
“the seller” Means C.W. Sellors.
2. Acceptance and Variation of Conditions
a) The following conditions and provisions of the Sale of Goods Act 1979 (as amended) and the Supply of Goods and Services Act 1982 (as amended) of the United Kingdom not inconsistent therewith shall apply to all our contracts except to the extent that they are varied overleaf.
b) The customer will be deemed to have accepted the goods unless the same are returned to the seller within 48 hours of delivery by the seller to the address specified by the customer for delivery or within 48 hours of the collection of the goods from the seller’s premises by the customer.
c) Acceptance by the customer of the goods shall be deemed to be acceptance of all the following conditions.
d) If the terms and conditions stated in any customers own offer or order are inconsistent with these conditions or if they contain a provision purporting to override these conditions our acknowledgement of order and/or delivery of the goods shall constitute a counter offer and the customer shall be deemed to have accepted these conditions unless the customer notifies the seller to the contrary within 48 hours of the date of delivery by the seller of the goods to the address specified by the customer or within 48 hours of the collection of the goods from the sellers premises by the customer and returns the goods to the seller within the said period of 48 hours.
e) The customer’s response to any quotation by the seller shall constitute an offer to purchase the goods or have the services provided. An order placed by the customer in response to a quotation shall only be binding on the seller if it is accepted by the seller in writing.
f) No variation of these conditions will be recognised unless accepted by the seller in writing.
The seller shall be entitled to take into account and charge in addition to the contract price fluctuations in the cost of materials, components, services and labour up to the date of despatch of the goods or collection by customer or customer’s agent, whichever date is the latter.
The customer shall accept the supply of a quantity (whether more or less) within 5% of the stipulated amounted of his order on a rateable adjustment of total price.
5. Withholding of Delivery
The seller shall be entitled to withhold delivery of any goods if upon the invoicing thereof the customer’s credit liability as fixed by the seller from time to time at the seller’s discretion would thereby be exceeded. In determining the customer’s credit limit for such purposes the seller shall be entitled to take into account the aggregate purchase order value and invoice value of all purchase orders from the customer to the seller and invoices to the customer which are then outstanding including unpaid accounts and accounts not yet due for payment.
6. Despatch Dates
Although the seller will use all reasonable efforts to meet its despatch forecast, such forecasts are estimates only. The seller shall not be liable in any circumstances for loss, whether direct or consequential, arising from delay in despatch and it is expressly agreed between the seller and customer that time is not of the essence of any contract between the seller and customer.
7. Effecting Delivery
a) If the customer should for any reason fail to take delivery of any goods within 14 days of written notice from the seller that the same is ready for delivery, the seller shall at its sole discretion be able to make a charge for the storage of such goods and in addition charge interest at 4% of the invoice value of the goods per month or at such other rate which is fixed from time to time by the seller.
b) Delivery of the goods shall be in accordance with the delivery instruction on the face of the order acceptance.
8. Passing of Ownership and Risk
a) The risk in the goods shall pass to the customer:
i. On delivery to the address specified by the customer either by the seller or by the seller’s delivery agent or by a common carrier or on a delivery to the customer’s agent or
ii. In the case of goods to be collected by the customer from the seller’s premises at the time the seller notifies the customer that the goods are available for collection.
And the customer shall insure them against loss or damage accordingly.
b) Until the seller has received full payment for all goods whatsoever which the seller has supplied at any time to the customer.
i. The goods shall remain the seller’s property.
ii. The customer shall hold the goods for the seller as the seller’s fiduciary agent and bailee and shall store them in such a way that they can be identified as the sellers property and shall keep them separate from the buyers own property and the property of any other person.
iii. Subject to (iv) and (v) below, the customer shall be at liberty to sell the goods in the ordinary course of business on the basis that on demand the customer shall account to the seller for the proceeds of sale or otherwise of the same and shall keep all such proceeds separate from any monies or property of the customer or third party provided that the customer shall have no authority to enter into any contract of sale on the seller’s behalf and any contract of sale should be accordingly concluded in the name of the customer.
iv. The seller may at any time revoke the customer’s power of sale by notice to the customer if the customer is in default of payment in any sum whatsoever due to the seller (whether in respect of goods or any other goods supplied at any time by the seller to the customer for any reason whatsoever) or if any bill of exchange, cheque or negotiable instrument drawn or accepted by the customer in the seller’s favour or at the seller’s request is dishonoured on presentation for payment or if the seller has bonafide doubts as to the solvency of the customer.
v. The customer’s power of sale shall automatically cease if a receiver is appointed over any of the assets or the undertaking of the customer or a winding-up order is made against the customer or the customer goes into voluntary liquidation (otherwise than for the purpose of reconstruction or amalgamation) or calls a meeting of or makes any arrangement or individual voluntary arrangement or any proposals of the same or composition with the creditors or has a statutory demand served upon it or commits any act of bankruptcy.
vi. On the determination of the customer’s power of sale under (iv) and (v) above, the customer shall place the goods at the seller’s disposal and the seller or its agents shall be entitled to enter upon any premises of the customer for the purposes of removing the goods and to remove such goods from the premises (including severance from the realty where necessary.)
vii. Each of the above clauses contained in clause 8 “passing of ownership and risk” shall be conserved as separate obligations and the enforceability of ay one or more of the clauses shall not in any way be affected by the unenforceability of any of the other clauses.
9. Action of Price of Goods and/or Services
Notwithstanding the terms of Clause 8 the customer hereby expressly agrees that the seller can bring an action for the price of the goods and/or services which remain unpaid irrespective of whether property in the said goods has passed to the customer.
10. Payment by Customers
a) All prices quoted by the seller are exclusive of Value Added Tax and Value Added Tax at the current rate shall be paid on the goods or services by the customer.
b) Time for payment as stated on the acceptance of the customer’s purchase order shall be of the essence of the contract.
11. Terms of Payment
a) The seller shall submit an invoice or proforma invoice to the customer at the address on the Purchase Order form which shall include the price, value added tax and any other additional charges including, but not limited, transport, packing and insurance.
b) Unless otherwise agreed between the seller and the customer payment will be by cash with order or cash against proforma invoice.
c) If the seller at its sole discretion allows the customer a period of credit the customer shall pay the seller the full amount stated on the invoice within 30 days of the invoice date notwithstanding that the goods many not have been delivered or collected or the seller may not have notified the customer the goods are ready for collection and that the property in the goods has not passed. Time for payment shall be of the essence.
d) The seller can at its sole discretion withdraw credit facilities whereupon the seller may render invoices for any purchase orders which will become immediately due for payment and all invoices already rendered will immediately become due for payment notwithstanding the seller may have previously agreed a period of credit.
e) If the customer fails to make payment in accordance with Clause (b), (c) and (d) above:
i. The sums outstanding for the goods and/or services shall become due and payable forthwith and
ii. The seller at its sole discretion may charge interest without notice to the customer at the rate of 2½% per month on any sum outstanding for as long as they are overdue and
iii. The seller shall be entitled to cancel the contract and
iv. The seller shall be entitled to suspend any further deliveries to the customer.
f) It is an express condition of sale that in the event of the seller having to have recourse to legal action or to debt collecting agents against the customer in order to obtain payment of outstanding account any costs incurred in so doing are payable by the customer on a full indemnity basis.
12. For Sales Within and outside the United Kingdom
Unless otherwise stated on the face of the purchase order, acceptance and sales invoice, all prices are exclusive of VAT and any cost and expenses incurred by the seller in respect of carriage, insurance or packing to the customer’s order will be charged to the customer in addition to the price of the goods.
13. General Lien
Without prejudice to all other remedies the seller may have in respect of unpaid debts due to the seller from customers, goods or property in the seller’s physical possession (whether worked on or not) the seller shall be entitled on the expiration of 21 days’ notice in writing to fit and to apply any proceeds received towards such debts.
14. Suitability and Fitness
Without prejudice to paragraph 16 any customer who claims that goods or workmanship are defective, are of unmerchantable quality unfit for their purpose or do not conform with their description or any workmanship is defective or has not been carried out with reasonable skill and care must give the seller written notice to that effect within seven days from the date of delivery of the goods or the collection of the goods from the seller’s premises whichever date is the sooner and in such notice give details of alleged defects. The seller shall be entitled to require the customer to return the goods (carriage paid) to the seller for examination. The seller will replace any defective or unfit goods provided that in the opinion of the seller they have not been tampered with or subjected to improper treatment. Goods that the seller agree can be credited shall be revalued subject to current relevant precious metal prices according to the intrinsic precious metal content and original principle of valuation. Any equipment or material not of the seller’s manufacture is sold only with such warranty as the manufacturers thereof give to the seller and the seller may be able to enforce such items not being warranted by the seller in any way.
15. Cancellation by Customers or Postponement of Delivery
a) Except with the written agreement of the seller, no order for goods specially ordered for a customer may be cancelled without payment by the customer of any loss incurred due to cancellation. If work on the order is suspended because of the customer’s instructions, or lack of instructions, the seller reserves the right to treat such circumstances as a cancellation of the contract by the customer.
b) Customers may not cancel any outstanding orders for goods already made, or in process of being made at the time or for goods to be made from materials specially ordered for the execution of such orders except by mutual written agreement between the seller and the customer and then only on terms which would fully indemnify the seller.
c) Any goods previously ordered where delivery is postponed by the customer for 30 days beyond the original date will be invoiced and payment required under the terms of payment.
16. Cancellation by Seller
The seller shall be entitled to cancel the order by written notice and without prejudice to the seller’s right to recover damages if:
i. The customer shall go into liquidation or bankruptcy or enter into an individual or company voluntary arrangement or
ii. A distress or execution is levied or enforced upon any of the property of the customer and is not paid out or discharged within 14 days or
iii. An encumbrancer takes possession or a receiver is appointed to the undertaking of the customer or any of his property or
iv. The customer stops payment or causes or threatens to cease to carry on his business or to pay his debts as and when they fall due.
17. Force Majeure
Any contract may be cancelled or suspended in whole or in party by the seller without liability on its part for any loss or damage arising directly or indirectly from such cancellation or suspension or consequence of the prospect happening or result of any industrial dispute, Act of God, war, civil commotion, legislation, breakdown of machinery, inability to obtain supplies, inability to obtain raw materials, equipment, fuel power, components or transportation, inability to obtain any necessary import or export or other licenses or consents of any government authority or any other cause or circumstances whatsoever beyond its control.
18. Separate Deliveries
Where the contract is for sale of goods by a number of separate deliveries to be separately paid for, a breach affecting on delivery shall not affect any other provided that so long as payment for any delivery has become due and is unpaid the seller shall not (without prejudice to the seller’s rights under condition 13) be liable pending payment to make further delivery pursuant to the contract.
19. Job Lot Sales
Where goods are supplied on a job lot basis and the words “job lot” appear on the invoice the customer is deemed to have accepted that in consideration of the special price that he is paying the seller gives no warranty as to the merchantable quality of all or any of the goods, nor their fitness for any particular purpose to which the customer intends to put them.
20. Goods on Approval
The customer shall be deemed to have contracted to purchase any goods which have been forwarded on approval unless such goods are returned to the seller within 14 days after the date on which they have been forwarded to the customer.
If the customer shall supply the seller with a design to which the goods are to be manufactured then the customer shall indemnify the seller against all claims, damages and costs and expenses arising out of the infringement of any copyright, patent, trademark, registered design, or similar rights of any third party.
22. Catalogues and Advertising Literature
The seller makes no representation of warranty as to the accuracy of any catalogues, leaflets or other forms of advertising literature which are intended merely to present a general picture of the seller’s products.
Expect where otherwise expressly indicated by the seller in writing, all express or implied terms, conditions, representations, guarantees and warranties not stated in these conditions and capable of exclusion (whether statutory or otherwise) in respect of the goods supplied to the customer are hereby excluded. In particular, the seller gives no warranty or guarantee as to the suitability of the goods supplied for any particular purpose (even if that purpose is known to the seller) or as to their merchantable quality. The seller accepts no responsibility whatsoever (whether to persons or property) arising directly from the storage, application or use of any of the goods supplied other than (except in the case of international supply contracts) liability for death or personal injury resulting from the seller’s negligence. Sections 13 and 14 of the Sale of Goods Act 1979 and Section 13 and 14 of the Supply of Goods and Services Act 1982 are excluded. In no event shall the seller be liable for the following loss or damage, caused and even if foreseeable by or in contemplation of the seller.
i. Economic loss which shall include loss of profit, business revenue, goodwill and anticipated savings.
ii. Damages in respect of special indirect or consequential loss or damage, and,
iii. Any claim made against the customer by any other party or person.
24. Tracing Order
Any customer must keep precise records of all sales of goods and of any adaption to goods and any transactions relating to goods. The customer must notify the seller of all such sales, adaption and transactions. All proceeds from sales of goods should be kept in a separate account.
a) If any one or part of any one of these conditions is rendered void or unenforceable at law that condition or part shall be severable from these conditions and otherwise these conditions shall remain in full force and effect.
b) No person has any authority to give on behalf of the seller any representation or warranty or guarantee in respect of the goods other than as expressly stated in these conditions.
26. Law and Dispute
These conditions and any contract between the seller and the customer shall be governed and constructed in accordance with the law of England the customer and the seller shall submit to the jurisdiction of the English Courts.
The seller shall not be deemed to have waived any of these conditions by reason of any indulgence given to the customer whether as to time or otherwise or by reason of any undertaking or work for any delivery of goods to the customer whether undertaken or delivered with or without knowledge of the facts given rise to a right to cease work and to cease making deliveries.
The headings to the paragraphs of these conditions are inserted for convenience and shall not affect their interpretation.