TERMS AND CONDITIONS OF SALE
"Buyer" means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller, “Seller” means Abrey & Son Limited (Registered No. 3901395) whose registered office is at Pond House Purton End Debden Saffron Walden Essex CB11 3JT
"Goods" means the Goods (including any instalment of the Goods or any parts for them) which the Seller is to supply in accordance with these Conditions
“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 Buyer and the Seller
“Contract” means the Contract for the sale of the Goods incorporating the Conditions.
1. Basis of the sale
1.1 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller
1.2 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing and in entering into the Contract the Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations (excluding any representations made fraudulently) which are not so confirmed
1.3 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the use of the Goods which is not contained in the operating instructions supplied to the Buyer in connection with the Goods is followed or acted upon entirely at the Buyer's own risk and accordingly the Seller shall not be liable for any such advice or recommendation
1.4 Any typographical clerical or other error or omission in any sales literature quotation price list acceptance of offer invoice or other documents or information issued by the Seller shall be subject to correction without any liability on the part of the Seller. Unless otherwise agreed by the Seller in writing the price for the Goods shall be the price set out in the Seller’s price list published on the date of delivery or deemed delivery.
1.5 All prices are quoted exclusive of VAT and the Seller shall have the right to vary the price of the Goods in the event of increases in cost (such increases not to be limited to fluctuations to the rate of exchange or freight) to the Seller of obtaining the Goods at any time before delivery by giving the Buyer written notice. If the Buyer is of the opinion that any such increase is unreasonable the Buyer may by written notice given within three working days of the date of the Seller’s notice cancel the Contract
1.6 In the event of the Buyer serving notice under clause 1.5 or wishing to withdraw for some reason from the Contract the Seller will be entitled to payment of a proportion of the price of the Goods which will be sufficient to cover the losses that the Seller is likely to incur by reason of the Buyers cancellation or at the Seller's request 10% of the price of the Goods.
1.7 The Seller reserves the right to make any changes to the Goods which are required to improve and/or conform with any applicable safety or other statutory requirements
1.8 The Seller reserves the right to apply payment to the oldest debit notwithstanding the Buyer expressly instructs otherwise.
1.9 Any rights of any person to enforce the terms of sale pursuant to the Contracts (Rights of Third Parties) Act 1999 are excluded.
1.10 Subject to any variation under condition 1.1 the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2. Terms of Payment
2.1 The Buyer shall pay the price of the Goods within 14 days after the date of the Seller's invoice and the time of payment of the price shall be of the essence of the Contract
2.2 If the Buyer fails to make payment in full on the due date the Seller may charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of five per cent per annum above Barclays Bank Plc base rate from time to time until payment in full is received in cash or cleared funds.
3. Delivery
3.1 Cost of delivery shall be included in the price of the Goods provided delivery is within the U.K. The Buyer will be responsible for installation.
3.2 The Goods shall be delivered to the Buyer’s premises in the U.K. or as otherwise agreed between the Buyer and the Seller in writing. Any dates or times quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused and the time for delivery shall not be of the essence
3.3 Delivery is on the understanding that there is a suitable road to the point where delivery is requested and if no such road exits delivery will be made to the nearest point to which in the opinion of the Seller’s driver motor vehicles can safely proceed
3.4 All necessary labour and equipment required to unload the Goods shall be supplied by the Buyer and the Seller’s drivers shall not be responsible for unloading
3.5 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault and the Seller is accordingly liable to the Buyer the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods
3.6 If the Buyer fails to take delivery of the Goods when the Seller wishes to deliver them (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then without prejudice to any other right or remedy available to the Seller the Goods will be deemed to have been delivered and risk of damages or loss of the Goods shall pass to the Buyer. The Seller may store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage or sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) subject to receipt of payment in full of the price of the Goods in cash or cleared funds account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract
4. Risk and Title
4.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery or if the Buyer wrongfully fails to take delivery of the Goods at the time when the Seller has tendered delivery of the Goods
4.2 Any Goods damaged in transit may be repaired or replaced at the sole discretion of the Seller and without the Seller being under any obligation to do so provided that any such damage is notified to the carrier and to the Seller within 24 hours of delivery
4.3 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 Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods
4.4 Until such time as the property in the Goods passes to the Buyer the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee insured and identified as the Seller's property and until payment has been made and the Buyer shall not be entitled to resell the Goods. In the event of loss or damage, the Buyer shall pay the Seller insurance proceeds in respect of the Goods.
4.5 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods
5. Warranty
5.1 The Seller will endeavour to transfer to the Buyer the benefit of any guarantee given to the Seller by the manufacturer of the Goods.
5.2 The Seller warrants that (subject to the other provisions of these Conditions) upon delivery, and for a period of 6 months from the date of delivery, the Goods;
5.2.1. are free from defects in accordance with the state of art in materials and workmanship, subject to natural wear and tear occurring prior to delivery; and
5.2.2 be reasonably fit for a particular purpose for which the Goods are being bought if the Buyer has made known that purpose to the Seller in writing and the Seller has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Seller; and
5.2.3 will be of satisfactory quality within the meaning of the Sale of Goods Act 1994.
5.3 The Seller shall not be liable for a breach of any of the warranties in condition 5.2 unless:
5.3.1 the Buyer gives written notice of the defect to the Seller within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and
5.3.2 the Seller is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost for the examination to take place there.
5.4 The Seller shall not be liable for a breach of any of the warranties in condition 5.2 if:
5.4.1 the Buyer resells or makes any further use of such Goods after giving such notice; or
5.4.2 the defect arises because the Buyer failed to follow the written instructions provided by the Seller as to the storage, use or maintenance of the Goods and in particular does not have the Goods inspected regularly; or
5.4.3 the Buyer or any third party alters or repairs such Goods or affixes any spare parts to the Goods not provided by the Seller. For parts manufactured by third parties the liability of the Seller to the Buyer in respect of the Goods extends to the assignment of third party liability claims to which the Seller is entitled against the supplier of the bought-in products
5.4.4 the Buyer fails to follow the manufacturer’s instructions for use which the Seller is entitled to alter as often as the Seller deems necessary.
5.5 Subject to conditions 5.3 and 5.4, if any of the Goods do not conform to any of the warranties in condition 5.2 the Seller shall at its option repair or replace such Goods (or the defective parts) or refund the price of such Goods at the pro-rata Contract rate provided that, if the Seller so requests, the Buyer shall, at the Buyer’s expense, return the Goods or the part of such Goods which is defective to the Seller. In all cases only parts displaying a fault in materials or workmanship shall be replaced. The wages and expenses expended for installation and removal and any costs for duties and freight for parts replaced under warranty are payable by the Buyer.
5.6 If the Seller complies with condition 5.5 it shall have no further liability for a breach of any of the warranties in condition 5.2 in respect of such Goods.
5.7 Any Goods replaced will belong to the Seller and any repaired or replacement Goods will be warranted on the terms above for the un-expired portion of the 6 month period.
5.8 The above warranty shall not apply if the Goods are used machinery, equipment or vehicles.
6. Limitation of Liabilities
6.1 Subject to condition 5, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
6.1.1 any breach of these Conditions; and
6.1.2 any representation, statement, tortious act or omission including negligence arising under or in connection with the Contract.
6.2 All warranties, conditions and other terms implied by statute or common law (save for the condition implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent limited by law, excluded from the Contract.
6.3 Nothing in these Conditions excludes or limits the liability of the Seller for death or personal injury caused by the Seller’s negligence or fraudulent misrepresentation.
6.4 Subject to conditions 6.2 and 6.3;
6.4.1 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the contract price of the Goods; and
6.4.2 the Seller shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
6.5 The Buyer shall be obliged to pass on any instruction manuals relating to the Goods that he shall receive from the Seller to his own buyers if any and the Buyer shall indemnify the Seller against any claim made by third parties arising out of the improper use of the Goods or their use not in conformity with any instruction manuals.
6.6 In the absence of any negligence or breach of statutory duty by the Seller the use by the Buyer, except where the Buyer is a consumer, of any of the Goods is entirely at the Buyer’s own risk
6.7 If delivery is refused and the Buyer does not notify the Seller the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract
6.8 The Buyer shall be deemed to have accepted the Goods 24 hours after delivery to the Buyer.
6.9 After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the Contract.
7. Force Majeure
7.1 The Seller shall not be responsible for any loss or damage howsoever caused through its inability or delay in fulfilling any term of this Contract due to any circumstance or occurrence beyond its reasonable control including but not limited to terrorist act strikeouts lockouts or other industrial action. In the event of such an inability or delay the Seller shall have the option to rescind the Contract wholly or in part without incurring any liability whatsoever to the Buyer.
8. Insolvency of the Buyer
8.1 If the Seller apprehends that the Buyer is in financial difficulty the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer and if the Goods have been delivered but not paid for in full the full price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary
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 Seller of any breach of the Contract by the Buyer 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 thereby
9.4 All amounts due under the Contract to the Seller from the Buyer shall be paid in full without any set-off, deduction or withholding other than as may be required by law.
9.5 The Contract shall be governed by English Law and the parties hereby submit to the exclusive jurisdiction of the Courts of England and Wales.
DATED OCTOBER 2004