(A) In these Conditions:-
(i) “the Seller” means John Stabler (Textiles) Limited.
(ii) “the Buyer” means the person submitting an order for the purchase of goods from the Seller (or where such person acts as agent for another, that person and the principal jointly and severally);
(B) These General Conditions shall (in so far as not inconsistent with any special terms agreed between the Seller and the Buyer) apply to all tenders, offers, quotations, acceptances, deliveries and agreements relating to the sale of goods by the Seller and the Buyer shall be deemed to assent thereto.
(C) No other conditions or modifications of these Conditions shall be binding on the Seller unless the Seller agrees thereto in writing and the Seller shall not be deemed to accept such other conditions nor to waive any of the Conditions by failing to object to provisions contained in any purchase order or other communication from the Buyer. (D) No representative, agent or salesman who is not a director of the Seller has any authority to amend or waive any of these Conditions or other provisions of the contract.
- SELLER’S SPECIFICATIONS
All descriptions, specifications, drawings, weights, dimensions, capacities, prices, performance ratings and other data quoted or submitted by the Seller or included in any catalogue, prospectus, circular, advertisement, illustrated matter or price list are to be deemed approximate only (except where stated in writing to be exact or expressly made of the essence) and subject thereto none of such items or any part thereof shall form part of the contract.
(A) Unless otherwise agreed in writing the price payable to the Buyer for goods shall be that specified upon the Seller’s written quotation.
(B) After an order has become binding on the Seller the price will have V.A.T. added at the appropriate rate and are subject to increase to reflect increases from time to time in list prices and any increases in costs to the Seller (including without limitation costs of materials, labour, transport and services, and fluctuations in currency exchange rates and any tax, duty, fee or charge imposed by any government or other authority) prior to delivery.
(C) Packaging, delivery and transport charges and insurance are included in prices of £300 or more, but will be charged extra when the whole price of goods to be delivered is less than £300, (£400 for Northern Ireland, £450 for Eire) or when the Buyer requests a special mode of delivery which the Seller would not otherwise employ.
(A) Unless otherwise agreed by the Seller or stated upon an acknowledgement of order or invoice submitted by the Seller the price of goods, and all additions made thereto under Condition 3, shall become due for payment by the Buyer on the date specified upon the Seller’s written quotation. (B) The Seller reserves the right at any time before proceeding or proceeding further with an order to demand full or partial payment under the contract or of any moneys due and payable under any other contract between the Seller and the Buyer.
(C) If the Buyer defaults in any payment the Seller may, in addition to exercising the right contained in Condition 4 (B) suspend work under the contract, delay or withhold delivery or cancel the contract or suspend work, delay or withhold delivery under or cancel any other contract with the Buyer and retain any progress payments or payments on account already received under this or any other contract with the Buyer.
(D) The Seller reserves the right to charge interest on all overdue moneys.
(E) The Seller shall have a lien on all undelivered goods which the Buyer agrees to buy from the Seller for all moneys due from the Buyer to the Seller under this or any other contract between them and the Buyer shall have no right of set-off in respect of such moneys.
(A) Time is not of the essence of the contract and any time or date specified by the Seller as the time at which or the date on which goods will be despatched or delivered (or as the case may be made available for collection) is given and intended as an estimate only and the Seller shall not be liable for any loss, damage or expense howsoever arising from delay in delivery.
(B) The Buyer shall at the request of the Seller supply the Seller with details necessary to allow the Seller to make delivery. If the Buyer does not comply with the foregoing or will not accept delivery it shall not be entitled to withhold any payment and shall indemnify the Seller against any consequential loss, damage or expense and the Seller may enforce its remedies for payment and may (if it so wishes) cancel intended delivery and sell goods to which such intended delivery related without prejudice to its right to claim damages in respect of such breach of contract or may store goods at the Buyer’s risk in a place of its choosing at the cost of the Buyer and delivery by the Seller of a deposit receipt or other evidence of storage to the Buyer shall be deemed to be delivery of the goods.
(C) The Seller reserves the right to make delivery by instalments unless otherwise expressly provided in the contract and the period during which delivery by instalments may be made and the quantity of goods delivered in each instalment shall be at the Seller’s discretion.
(D) Notwithstanding any express agreement as to the date of delivery the Seller shall be entitled to postpone or cancel delivery in whole or in part when it is delayed in or prevented from making or obtaining any goods or materials or parts or components or services therefor or making delivery thereof by strikes, lockouts, trade disputes, labour troubles or any cause beyond the Seller’s control. During any of the foregoing events the Seller’s obligations shall be suspended until such events cease or until the Seller cancels delivery (as the case may be) and the Seller shall not be required to obtain elsewhere in the market goods with which to replace or permit it to produce goods delivery of which has been postponed or cancelled as a result of any of the said events. In the event of cancellation, the Seller shall be paid pro rata for goods delivered or work done to the date of cancellation.
(E) The Buyer shall be solely responsible for the proper unloading of goods. If to assist the Buyer remove the goods from the point of delivery the Seller or any sub-contractor does any loading or unloading of goods free of charge, no liability whatsoever shall thereby be incurred by the Seller or sub-contractor and the Buyer shall indemnify the Seller in respect thereof.
- BUYER’S OBLIGATIONS AND CLAIMS ON DELIVERY
(A) The Buyer will:-
(i) examine goods carefully within 3 days of taking delivery;
(ii) notify the Seller (and any carrier for the Seller) in writing within 7 days of taking delivery of any error in quantity or weight or description of goods delivered or that they were mixed with others not included in the contract or of any damage to goods revealed by such examination and not caused since delivery was taken. (B) Failure to make any notification in accordance with paragraph (ii) above which an examination under (i) above should have enabled the Buyer to make shall constitute waiver by the Buyer of all claims based on or relating to facts which such examination should have revealed.
Risk in goods shall pass to the Buyer when goods are delivered to the Buyer. Delivery to a carrier or to any person firm or company on the Buyer’s behalf shall constitute delivery to the Buyer.
- TITLE TO GOODS
(A) Unless otherwise agreed in writing or until the Seller otherwise in writing agrees or notifies the Buyer, goods shall remain in the ownership of the Seller until the Buyer has paid for them in full and also discharged all other payments due in respect of goods sold or supplied by the Seller to the Buyer at any time whatsoever.
(B) The Buyer may sell goods notwithstanding the Seller’s title and any sale by the Buyer of goods owned by the Seller shall, as between the Buyer and the person to whom the Seller sells, be made by the Buyer as principal, but the proceeds of sale shall belong to the Seller to the extent that the Buyer has not paid the Seller for the goods until payment has been made, and until such time such proceeds shall be held by the Buyer in a fiduciary capacity on behalf of the Seller and shall be kept in a separate account without prejudice to the Seller’s rights to trace same if the Buyer fails to keep such proceeds separate as aforesaid. The Buyer will, if the Seller so requires, assign to the Seller free of charge the Buyer’s rights to unpaid resale proceeds of the Seller’s goods.
(C) Pending delivery of goods owned by the Seller pursuant to a resale authorised by this condition, the Buyer shall store the same on its property in such a way as to keep them clearly identified as being the property of the Seller and will take such care of them (including effecting all proper insurance) as a careful business would take of his own property.
(D) The Seller may while owner of the goods (and without prejudice to any other rights it may have under or by virtue of the contract for the sale of such goods to the Buyer) demand the immediate return of goods at any time and the Buyer shall forthwith comply with such demand and bear the expense of such return. The Seller will not exercise such right without giving 3 days prior written notice unless the Buyer fails to pay for the goods in whole or in part on due date or if before the due date the Buyer is otherwise in breach of any terms of the contract for the sale of the goods.
(E) If the Buyer fails forthwith to return goods so demanded the Seller may enter on the Buyer’s premises during normal business hours for the purpose of removing the goods (the cost of doing which shall be borne by the Buyer) or may sell or otherwise deal with the goods.
(F) The Buyer hereby grants licence to the Seller and its successors in title to the goods, their respective employees and agents to enter on to the Buyer’s premises for purpose of removing goods and where the goods are on premises other than the Buyer’s own the Buyer shall use its best endeavours to procure such licence from the appropriate person. The Buyer will give any assistance required by the Seller to register the Seller’s right of entry and will pay reasonable costs and expenses incurred by the Seller in effecting any such registration.
(G) The foregoing rights of the Seller are in addition to and not in lieu of any other rights it may have at common law or by statute including the right to payment for goods and the right to recover goods.
- WARRANTY OF SELLER
(A) Each of the Seller and the Buyer shall be regarded as having received no representation made by or on behalf of other of them before the contract was entered into which in any way induced it to enter into the contract, but this shall not apply to any representation recorded in a quotation or order or acknowledgement of it. (B) The Seller warrants that it has the right to sell the goods and that the goods are free from any charge or encumbrance unknown to the Buyer.
(C) Subject to the application of Condition 10 below the Seller will replace repair or rectify (at its choice) the goods or take back the goods and refund or credit the Buyer with the cost thereof provided:- (i) any defect appears within 6 months of delivery and the Buyer notifies the Seller in writing within 7 days of discovering the defect giving full details thereof; and
(ii) the goods have not since delivery been subject to the application of any dyes process or machining; and
(iii) the Seller shall be entitled to and shall be afforded facilities to inspect and test the foods as it thinks fit; and
(iv) the Seller is satisfied that the goods are defective as a result of a defect in materials or workmanship or are otherwise not in accordance with the contract and that the defect is not a discolouration of the material comprised in shoulder pads, due to a reaction between nitrous gases in the atmosphere and the cloth and foam utilised, which discolouration, at the date of manufacture, was technically unavoidable; and
(v) the Seller is satisfied that no-one other than the Seller has so dealt or tampered with the goods as to contribute to their defectiveness and that the goods have been properly used, handled, maintained, stored and serviced (where appropriate) and have not been used whilst allegedly defective or otherwise not in accordance with the contract or order.
(D) Where the Buyer notifies the Seller as aforesaid and the Seller performs its obligations under this condition the Buyer shall not be entitled to any claim in respect of the goods, or for work done thereon, transport costs, loss of profit, damage to property not the subject matter of contract, or otherwise (save where death or personal injury has been caused by the Seller’s negligence) nor shall the Buyer be entitled to treat delivery thereof as ground for repudiating the contract failing to pay for the goods or cancelling further deliveries.
- LIMITATION OF SELLER’S LIABILITY
(A) Except as provided in these Conditions or otherwise agreed by the Seller in writing and except where death or personal injury has been caused by the Seller’s negligence no warranty, condition, representation, undertaking or obligation express or implied by statute, common law, custom, course of dealing or otherwise on the part of the
Seller shall apply in respect of the goods.
(B) Where goods any part thereof are supplied designed or manufactured other than by the Seller the Seller’s obligations to the Buyer shall not exceed those owed to the Seller by the relevant supplier designed or manufacturer.
(C) The Buyer shall in no circumstances, save for death or personal injury caused by the Seller’s negligence, be entitled to recover from the Seller damages for breach of the contract of which these Conditions form part for negligence or otherwise arising exceeding the price of goods paid by the Buyer under such contract.
- INDEMNITY BY BUYER
The Buyer undertakes to indemnify the Seller against all claims relating to or arising from goods sold to the Buyer by the Seller in respect of any loss, damage or expenses sustained by any third party howsoever caused save for death or personal injury caused by the Seller’s negligence.
- TRADE MARKS, PATENTS AND OTHER INDUSTRIAL RIGHTS
(A) The Buyer shall have no right to apply to goods any trademark owned or used by the Seller.
(B) If any claim made against the Buyer alleging that goods infringe any patent rights registered designs, copyright or other industrial property rights of another than:- (i) the Buyer shall forthwith notify the Seller with full particulars, and
(ii) the Seller or its suppliers or licensors (as case may be) shall be at liberty at their expense to conduct all negotiations and/or litigation in respect thereof and (if necessary) in the name of the Buyer
and if as a result of such negotiations or litigation the Buyer shall be unable to use goods substantially for the purpose for which they were bought the Seller shall (except where Condition 12 (C) applies, take them back and refund the price thereof to the Buyer and such refund shall be in full satisfaction of all claims by the Buyer against the Seller.
(C) The Buyer shall indemnify the Seller against all actions, costs (including the cost of defending legal proceedings) expenses claims proceedings and demands in respect of any infringement or alleged infringement by the Seller of patent rights registered design copyright or other industrial rights attributable to the Seller complying with any special instructions from or requirements of the Buyer relating to goods.
- DEFAULT BY BUYER
If the Buyer defaults in or commits any breach of any of its obligations to the Seller or ceases to carry on its business or a substantial part thereof, or if any distress or execution is levied on any of the Buyer’s property, or if the Buyer makes or offers to make any arrangement or composition with its creditors or commits any act of bankruptcy, or if any resolution or petition to wind up the Buyer’s business is passed or presented, or a Receiver appointed of the Buyer’s undertaking, property or assets or any material part thereof, then such event shall be deemed to constitute a breach of contract by the Buyer and the Seller shall be entitled forthwith to terminate this and any other contract with the Buyer and on written notice of such termination being posted by it to the Buyer’s last known address this contract (and if notice so states every other contract subsisting between the Seller and the Buyer or such contracts as are specified in such notice) shall be terminated and all the Seller’s unpaid invoices to the Buyer shall be immediately due for payment but without prejudice to any claim or right which the Seller might otherwise make or exercise or have against the Buyer.
Any notice given hereunder must be in writing and may be effected by personal delivery, telex or by registered mail postage and if effected by telex shall be deemed to be received on the day of sending and if effected by post shall be deemed to be received 48 hours after the date of posting.
- NO ASSIGNMENT
The contract of which these conditions form part shall be personal to the Buyer and shall not nor shall any rights under it be assigned by the Buyer without the written consent of the Seller.
- GOVERNING LAW
These conditions and the contract of which they form part shall be construed in accordance with English Law and the Buyer hereby submits to the jurisdiction of the English Courts.