CONDITIONS OF SALE
In these conditions:
“the Seller” shall mean Winterstoke Decorators Supply Ltd. “the Buyer” shall mean the person, firm or company to be supplied with Produce pursuant to the Contract; “the Order” shall mean the Buyer’s order for the Produce; “the Contract” shall mean the contract between the Seller and the Buyer for the sale and purchase of the Produce; “Produce” shall mean the produce to be supplied by the Seller to the Buyer pursuant to the Contract.
2. Application of Conditions
These conditions of sale apply to all Contracts between the Seller and the Buyer. They shall apply in place of, and prevail over, any other terms or conditions, whether contained or referred to in the Order, or in correspondence or elsewhere, or implied by trade, custom, practice or course of dealing. Any purported provisions to the contrary are excluded or extinguished.
3. Formation of Contract
A contract shall only come into existence upon the Seller’s written acceptance of the Order or on delivery of the Produce. A quotation given by the Seller does not constitute an offer and the Seller may withdraw or revise a quotation at any time before the Seller’s acceptance in writing of the Order. No order shall be binding upon the Seller unless or until such acceptance.
4. Delivery Dates
Delivery dates mentioned in any quotation, Order, Acknowledgement of Order, or elsewhere are approximate only and not of any contractual effect. The Seller shall not be under any liability to the Buyer in respect of any failure to deliver on any particular date or dates.
Risk in the Produce shall pass to the Seller upon delivery.
All prices are subject to change without notice. The price charged for the Produce will be that ruling on the date of delivery. Unless otherwise specified, VAT and any other tax or duty payable by the Buyer will be added to the price. Where the Seller arranges delivery the costs of carriage (including loading and unloading) and the cost of insuring the Produce during transit may also be added.
Payment of invoices shall (unless otherwise agreed in writing) be made in full without any deduction or set-off within 28 days of the date of invoice and time shall be of the essence. Any extension of credit allowed to the Buyer may be charged or withdrawn at any time. Interest shall be payable on overdue accounts at the rate of 4% per annum above the base rate of Barclays Bank PLC and will accrue from day to day from the due date for payment until receipt by the Seller of the full amount whether before or after judgment. In addition the Buyer shall reimburse the Seller for any expenses reasonably incurred by the Seller in the collection of overdue payments. Without affecting any other remedies of the Seller, any failure by the Buyer to make payment in full when due shall entitle the Seller to withhold further deliveries under the Contract or an other contract or any other contract with the Buyer and to make further deliveries subject to such conditions as to payment as the Seller may decide are appropriate.
8.1 Legal and beneficial title to any goods held by the buyer but not paid for in full, shall remain vested in the seller until payment in full has been made. In respect for such goods and any other goods supplied by the seller but not paid for in full which may be subject to any other contract.
8.2 Until payment in full has been made the goods shall remain the property of the seller, who will hold an invocable lien over them and the buyer shall store such goods in such a manner as the enable them to be identified as property of the seller.
8.3 The seller shall also have the right to recover any other goods supplied by seller to the buyer, held at the buyers premises or any other premises, whether or not payment in full for such goods has been made.
The Seller shall not be liable to the Buyer:
9.1 for shortages in quantity delivered, unless the Buyer notifies the Seller and any carrier concerned in writing to them within 3 days of receipt of the Produce;
9.2 for damage to or loss of Produce or part of a consignment in transit (where the Produce is carried by the Seller’s own transport or by a carrier on behalf of the Seller), unless the Buyer notifies the Seller and the Carrier (if any) in writing of any claim within 3 days of receiving the Produce or the scheduled date of delivery if earlier;
9.3 for defects in the Produce caused by any act, neglect or default of the Buyer or any third party.
10.1 Subject to Clause 9 (Limitation of Liability) the Seller warrants that it will make good any shortage or non-delivery, and as appropriate replace any Produce found to be damaged, or which is not of merchantable quality.
10.2 All other conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to the Produce are excluded and the Seller shall be under no liability to the Buyer for any loss (including consequential or economic loss), damage, or injury, direct or indirect, resulting from any default in, failure of or unsuitability for any purpose of the Produce, whether caused by breach of contract, misrepresentation, negligence or otherwise (except that liability for death or personal injury caused by the Seller’s negligence is not excluded).
11. Samples and Description
11.1 The providing by the Seller of samples for analysis by the Buyer, or the inspection of samples by the Buyer, shall not render any sale a sale by sample.
11.2 No guarantee, or warranty, is given that supplies will correspond exactly to the description or sample. The use of a description or sample shall not constitute the Contract a sale by description or sample or a sale by sample and description.
12. Insolvency and Default
If the Buyer:
12.1 shall convene a meeting of its creditors; or
12.2 shall be the subject of a proposal for a voluntary arrangement within Part 1 of the Insolvency Act 1986; or
12.3 shall be the subject of any other proposal for any composition, scheme or arrangement with, or assignment for, the benefit of its creditors; or
12.4 shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
12.5 shall have a trustee, receiver or administrative receiver or similar officer appointed in respect of all or any part of its business or assets; or
12.6 shall be subject to a petition presented for its winding up or for the making of an administration order; or
12.7 shall cease to carry on, or shall threaten to cease to carry on its business or any substantial part of its business; or
12.8 shall convene a meeting, or be the subject of a meeting convened, for any of the foregoing purposes; or
12.9 shall commit any breach of the Contract or any other contract between the Seller and the Buyer the Seller may without affecting any of its other rights stop any Produce in transit and/or suspend further deliveries and/or by notice in writing to the Buyer immediately end the Contract.
13. Data Protection
13.1 We may transfer information about you to our bankers, in order for them to provide their services to us and other customers of theirs and to help them to (a) obtain credit insurance (b) undertake credit control (c) undertake assessment and analysis (including credit scoring, market, product and statistical analysis) (d) securitise debts and (e) protect their interests.
13.2 We or our bankers may make credit reference agency searches in respect of your business and its principals. Please note that credit reference agencies make a record of searches which may be used to prevent fraud or money laundering or by other subscribers to make credit decisions about you.
13.3 Our bankers may give information about you and your indebtedness to the following for the purposes stated; a) any other divisions or associated companies of theirs - for the business purposes of such divisions or companies; b) our or their insurers - to quote for and issue any credit policy or to deal with any claims; c) any advisors acting on our or their behalf - so the advisers can carry out their services; d) any business to whom your indebtedness or our financing arrangements with them may be transferred - to facilitate such transfer; e) to any person to whom they have a duty of disclosure or to whom the law permits disclosure;
13.4 Our bankers may make decisions about you solely using an automated decision making process, such as credit scoring; however, they will tell us (and in turn we will tell you) if they make a significant decision only using such a process. Though us you can then request a review of their decision using other means;
13.5 Our bankers may monitor and/or record your phone calls to them for training and/or security purposes.
13.6 We will provide you with details of our bankers on request, including a contact telephone number from where you can obtain details of the credit reference agencies used by them and any third parties to whom information is transferred.
13.1 act of God, war, riot, strike, lockout, trade dispute or labour disturbance, accident, breakdown of plant or machinery, fire, floor, storm; or
13.2 difficulty or increased expense in obtaining labour, materials or transport, or other circumstances affecting the supply of goods or of raw materials by the Seller’s normal course of supply, or the manufacture of the Produce by the Seller’s normal means, or the delivery of the Produce by the Seller’s normal route or means of delivery.
14. Force Majeure
Notwithstanding any other of these conditions, the Seller shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct, or indirect, result of the supply of Produce by the Seller being prevented, hindered, delayed or rendered uneconomic by reason of circumstances of events beyond the Seller’s reasonable control including (but not limited to):
Failure by the Seller to enforce or exercise any of its rights shall not be treated as a waiver of any rights of the Seller nor operate so as to bar the exercise or enforcement of them at any later time.