WILLARD CONSERVATION LIMITED TERMS AND CONDITIONS OF SALE
1 DEFINITIONS
1.1 ‘Seller’ means Willard Developments Limited whose registered office address is Willard Conservation Building, Leigh Road, Industrial estate, Chichester, West Sussex, PO19 8TS United Kingdom
1.2 ‘Purchaser' means the party who buys or agrees to buy the goods from the seller, by itself, its servants agents and or subsidiary or associated company or transferee of that party's rights or any third party who has been given the power or authority by the said party.
1.3 ‘Conditions' means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the seller.
1.4 ‘Goods' means the articles which the purchaser agreed to buy from the seller.
1.5 ‘Price' means the price for the good excluding carriage, packing, insurance and VAT.
2 CONDITIONS APPLICABLE
2.1 These conditions shall apply to all contracts for the sale of goods by the seller to the purchaser to the exclusion of all other terms and conditions including any terms or conditions which the purchaser may seek to apply unilaterally under any purchase order, confirmation of order or similar documents.
2.2 All orders for goods shall be deemed to be on offer by the purchaser to purchase goods pursuant to these conditions without reservation, alteration or introduction of additional terms.
2.3 Any variation of these conditions (including any special terms and conditions) shall be void unless agreed in writing by the seller.
2.4 A binding contract will exist and will be subject to these conditions when the seller posts or transmits by fax or electronic mail an acknowledgement of order to the purchaser which shall thus constitute acceptance.
3 SPECIFICATION
3.1 Any drawings, technical specifications or other data attached to the seller's quotation shall be deemed to be the specification and if specified and identified on the purchaser's order, shall be deemed to be part of that order.
3.2 Upon acceptance as described in 2.4 no material change in the specification may be effected without the written consent of the purchaser and seller SAVE THAT the seller reserves the right to make any change in the specification of the goods after acceptance provided that such change does not materially affect the installation, performance or price thereof and any such change shall not invalidate any order placed with the seller or impose any liability on the seller.
4 CANCELLATION
4.1 No order shall be cancelled by the purchaser after it has been accepted by the seller other than with the express consent of and upon conditions reasonably required by the seller.
4.2 If the seller shall cease to manufacture or supply any goods ordered by the purchaser, it shall give notice of that fact in writing to the purchaser but shall not be liable for any loss or damage occasioned thereby to the purchaser whereupon the purchaser will have the option to be exercised within ten days of the date of the said notice either to take equivalent goods if available from the seller or to cancel its order without further liability upon the seller or the purchaser. If the purchaser has not exercised such option within the period the order shall be deemed to be continued with the equivalent goods if available.
4.3 Returned goods by the purchaser to the seller will constitute cancellation of the order which must comply with the provisions of 4.1 in order for such cancellation to be binding and any goods supplied to the purchaser which are returned to the seller for any reasons whatsoever shall be at the sole risk of the purchaser and the seller shall be entitled to store the same otherwise than at the seller's premises.
5 PRICE AND PAYMENT
5.1 The price as defined is as stated I the quotation SAVE THAT the seller reserves the right to invoice at the prices prevailing at the time of despatch. Extra charges will be made for all applicable taxes, carriage and freight and for all or any insurance, packing and crating, special tests or inspections.
5.2 In the event of an agreed modification of the order in accordance with the provisions wherein the stated price shall be adjusted accordingly at the discretion of the seller.
5.2 Payment shall be remitted as follows namely fifty per cent of the total payment due to comprising the price and other charges including carriage, packing, insurance and VAT (and in the event of overseas orders to be supported by an irrevocable letter of credit in favour of the seller and confirmed by a London bank in respect of the balance) and shall be remitted to the seller upon placement of the order by bankers draft or by such other method of payment as the parties may agree and the balance of the total payment aforesaid shall be remitted within thirty days of the date of the invoice SAVE THAT any variation of this term shall only be deemed valid if in writing and endorsed by other parties before the deemed date of acceptance established in accordance with 2.4.
5.4 If any payment is in arrear, the seller shall be entitled to charge the purchaser interest at the rate of 2% per month or part thereof on the amount outstanding and the seller by giving to the purchaser notice in writing shall have the right to suspend any future deliveries under any contracts with the purchaser until the default be made good or to cancel such contracts as far as any further goods remain to be delivered and to recover from the purchaser any expenses incurred directly or indirectly whether foreseeable or not by such suspended or cancelled.
5.5 Time of payment shall be the essence of the contract.
5.6 Save always that if payment of goods which have been delivered has not already been made the same shall become due forthwith upon the commencement of any action or proceeding in which the purchaser's solvency is involved.
6 DELIVERY
6.1 The date for delivery of goods in an estimate date and shall not be deemed to be of the essence of the contract. The seller will use its best endeavours to avoid any delay in delivery from the notified delivery date SAVE THAT failure to delivery on or before the specified date shall not be a sufficient cause for cancellation nor shall the seller be liable to compensate the purchaser for late delivery arising from any cause whatsoever nor for any consequential loss arising therefrom. Where delivery is to be made by instalments, delay in delivery of one instalment shall not entitle the purchaser to refuse to accept the remaining instalments.
6.2 In the event of strikes, lockouts, stoppage of work, trade disputes, delay or non delivery of materials, accidents, fire, flood, tempest, war, riot, civil commotion, Act of God of any circumstances not within the control of the company causing delay in manufacture of delivery, the seller may suspend delivery of goods contracted for and may extend the period for delivery to cover such time as has been lost by the circumstances above stated or may suspend or cancel either immediately or at any time after a suspension under this condition any or all of its obligation then unperformed.
6.2 Delivery to or collection by any carrier from carriage to the destination indicated by the purchaser shall be deemed to be delivery of the goods and due performance of the seller's duties.
6.4 In addition to any other remedies the seller may have if the purchaser fails to accept any goods on the modified delivery date the seller may at its option charge the purchaser for all insurance, storage and delivery costs associated with such goods occasioned by reason of and or consequent upon the purchaser's failure to accept the goods. The seller does not bind itself to effect such insurance, storage or delivery.
7 RISK & PROPERTY
All goods shall be at the purchaser's risk from the start of the day which has been notified to the purchaser as the delivery date providing always that the goods are on that date in a deliverable stale.
7.1 Property in the goods shall remain in the seller which reserves the right to dispose of them until payment in full thereof by the purchaser but prior thereto the goods shall be stored separately from all other goods in the purchaser's possession so as to be identifiable as the property of the seller. The seller may at any time prior to payment in full as aforesaid and without prejudice to any of its other rights recover or resell the goods or any of them and may enter for the purpose upon any premises in the control of the purchaser as defined where the seller reasonably believes the goods to be.
7.2 If the goods be incorporated or otherwise mixed with other goods belonging to the purchaser the goods shall remain separately identifiable and removable and until payment in full as aforesaid the seller shall retain property therein.
7.3 Until further payment as aforesaid, the seller shall retain the property in the goods even if they are fixed or annexed to land so as to become fixtures thereto and the seller shall have the right to unfix the goods and take possession of them
7.4 If prior to payment in full as aforesaid the purchaser resells the goods whether or not mixed or incorporated with other goods the purchaser shall undertake such resale as agent for the seller and shall if required in writing by the seller pay into a separate identified bank account the entire proceeds therefore which shall be held by the purchaser on trust for the seller absolutely. If and insofar as the proceeds of resale exceed the sums payable by the purchaser to the seller the purchaser having paid to the seller all sums due and owing from the purchaser to the seller out of the identified bank account aforesaid shall be entitled to retain such surplus as its agent's commission on the resale.
7.5 In the events provided under 7.5 herein the purchaser acts as the seller's agent as defined then the purchaser shall identify to the third party the seller as the principal and further in these circumstances at all times the purchaser acting in such capacity as agent shall indemnify the seller against all or any claims made by a third party and it is a fundamental term that the purchaser shall have in place and maintain a policy of insurance in order to support such indemnity in full.
8. WARRANTY
8.1 Goods manufactured by the seller shall be guaranteed for one year against defects in materials or workmanship subject to use by the purchaser at all times in an appropriate, reasonable and normal manner, and in accordance with any instruction booklet or manual supplied by the seller. The receipt of information from the purchaser and the delivery by the seller of the goods specified in the order or any order does not imply a warranty that the goods will be suitable for the purposes disclosed.
8.2 No guarantee is given in respect of defects arising from corrosion, erosion, or abnormal use, nor in respect of goods or parts not manufactured by the seller.
8.3 Save as stated above, all representations, conditions warranties and terms whether express or implied by common law, statute or otherwise as to the quality condition or fitness for any purpose of the goods are excluded.
9. DEFECTS
9.1 No claim by the purchaser in respect of lost damaged incorrect defective or faulty goods will be considered by the seller unless the following conditions are complied with.
(i) Where the goods are damaged in transit such damage must be notified to the seller in writing within three (3) working days of receipt of the goods with a copy direct to the carrier. In the case of carriage by an independent carrier, claims in respect of loss or damage in transit or non-delivery must be settled between the carrier and the purchaser and will not be the subject of a claim against the seller.
(ii) Non delivery of goods advised or invoiced for delivery in the UK which are not received within twenty-one (21) days of the date of despatch must be advised in writing to the seller.
(iii) Short or over deliveries must be notified in writing to the seller within three (3) working days from the date of receipt of the goods. In the case of short delivery, a copy of the letter should also be sent direct to the carrier.
(iv) Where goods are alleged to be defective or faulty written notice of the defect must be given to the seller within fourteen (14) working days from the date of receipt of the goods. Claims in respect of rejected or faulty goods will not be accepted until such items have been returned to the seller's premises and notification of despatch will not be accepted as proof of delivery.
9.2 Where goods delivered are not as specified in the seller's invoice, or where goods have been incorrectly delivered, the purchased undertakes properly to store and keep such goods and to notify the seller so that collection may be arranged.
10. ERRORS
The seller reserves the right to correct any clerical or typographical errors in any of
its documents.
11. INFRINGEMENT OF INTLECTUAL PROPERTY RIGHTS
Where goods have been manufactured by the seller pursuant to plans or specifications provided by the purchaser, the seller shall not be liable for any alleged patent infringement thereby caused. In the event of litigation arising in which it is alleged that the seller has infringed any patent or intellectual property or other right as aforesaid, the purchaser will forthwith take on the conduct of the Defence, and will indemnify and hold harmless the seller for all or any damages costs or expenses which the seller may incur or be ordered to pay or for any monies which is pays in reasonable settlement of such litigation.
12. TERMINATION
12.1 The seller shall have the right immediately to terminate the contract at any time
upon or following the occurrence of any of the following events:
(i) if the purchaser commits any act of bankruptcy or compounds or makes any arrangements with his or its creditors or executes a bill of sale on his or its goods or any of them or if any execution or distress is levied upon the purchaser's goods.
(ii) if the purchaser being a company is wound up either compulsorily or voluntarily or a received of its assets is appointed.
(iii) if the purchaser fails to take delivery of any of the goods subject to the contract or otherwise fails to perform the contract in any way.
12.2 Upon any termination of the contract, the seller shall have the right at its options either;
(a) to require the purchaser to take over and pay for at the then current price such materials as the seller shall have allocated to the contract including labour and other expenses incurred by the seller in relation to such materials or
(b) to require the purchaser to pay to the seller as liquidated damages an amount equivalent to 50% of the price of the goods ordered which the purchaser accepts to be a genuine pre-estimate of the sellers loss or
(c) to dispose of or deal with the goods and/or materials at its discretion without
being liable to account to the purchaser for the proceeds of such disposal.
12.3 Any such termination shall be without compensation to the purchaser, but without prejudice to any rights of the seller hereunder.
13. LIMIT OF LIABILITY
13.1 In no event shall the seller be liable for any consequential loss or damage of any kind whatsoever whether arising from their contract of sale or for the use, inability to use, failure of or defects in, the condition of, delay in delivery of or failure to delivery the goods the subject of this contract or otherwise.
13.2 Without prejudice to the foregoing, the liability of the seller on any claims arising out of or connected with any order, of the manufacture, sale, delivery, resale or use of any goods supplied by the seller (including but not limited to loss or liability arising from breach of contract) shall in no case exceed the unit price of such goods or parts thereof involved in the claim.
13.3 The purchaser assumes full liability for the use of the goods the subject of this contract and agrees to hold the seller harmless from any liability arising out of such use by the purchaser or by any subsequent purchaser.
13.4 The seller's liability to pay damages consequent upon bodily injury, illness or disease contracted by any other person, or loss of or damage to property caused by the seller, by itself, its servants, agents or otherwise, shall be limited to the maximum amount of £10,000.00
14. NOTIFICATION
The purchaser shall forthwith inform the seller if any of the following events occur:
(i) if, prior to full payment the seller for the goods, the purchaser receives an order acceptance of which would amount to or include the resale of any of the seller's products.
(ii) if, prior to payment the seller in full for the goods, the purchaser learns that any of the seller's products (whether or not pursuant to a ‘supply and fix' contract) are to be or may be affixed to land so as to become fixtures thereon.
(iii) if the purchaser (if a company) receives by way of service upon it any petition that the purchaser be wound up by the Court.
(iv) if the purchaser (if a company) produces any agenda containing any resolution which if passed by the purchaser would result in the purchaser being wound up.
15. HEALTH & SAFETY
It is the duty of the purchaser to ensure that the goods purchased hereunder are installed and operate in accordance with the seller's recommendations and/or instructions, and the purchaser agrees to indemnify the seller in respect of all claims arising in connection with any breach of this duty.
16. PROPER LAW AND JURISDICTION
16.1 The law applicable shall be that of England and Wales as may be subject to overriding laws of the European Union from time to time SAVE THAT no law shall be deemed to have retrospective effect without specific declaration of the same.
16.2 If any dispute, difference or question shall arise between the parties or their representatives, touching or concerning this agreement of any matter arising therefrom then every such dispute shall be referred for resolution by the academy of Experts, 2 South Square, Grays Inn, London WC1R 5HP.
17. COMPLIANCE WITH US LAWS
No provision of this contract or any documents in connection herewith shall be interpreted so as to, or be deemed to, create an agreement, nor shall the seller be bound by any requirement hereof which would result in any penalty or sanction under United States law such as but not limited to loss of tax benefits.
