CONDITIONS OF SALE 1ST
JANUARY 2005
DEFINITIONS
1. In these conditions
(i) “the Company” means Max Appliances Ltd
(ii) “goods” means the articles, equipment or goods to which
the document relates and
(iii) “the Buyer” means the purchaser of the goods from the
Company.
GENERAL
2. All orders are accepted and all contracts are made
subject to the following terms and conditions provided that any special
conditions in any quotation or contract signed on behalf of the Company by a
duly authorised employee shall prevail to the extent that they are inconsistent
with the following terms and conditions.
3. If the Company’s terms and conditions (whether special or
general) shall be at variance or inconsistent with any printed conditions
attached to the Buyer’s order then the Company’s terms and conditions shall
prevail to the extent that they are consistent with the following terms and
conditions
4. A quotation of the Company does not constitute an offer
by the Company to supply the goods and every acceptance of any quotation of the
Company and every order by the buyer in response to any quotation of the
Company shall be deemed an offer by the Buyer to the Company and will not be
binding on the Company until the Company has given written acknowledgement of its
acceptance of such an order.
5. A quotation shall be deemed to have been withdrawn unless
an order in respect thereof is placed within the period specified in the
quotation.
PRICE
6. Except in respect of a quotation or acceptance of order
where the price is expressly stated to be fixed for a specific delivery period,
the Company reserves the right to alter its quotation or order prices in
respect of the goods by reference to the price ruling at the date of dispatch
of the goods by any additional sum as may from time to time be necessary to
cover increases in the cost of the materials and or labour (or any other factor
affecting the cost of production or delivery) which may occur between the date
of conclusion of the contract and the date of dispatch.
7. Where in a quotation or acceptance of order a price is
expressly stated to be fixed for a specific delivery period and for any reason
(except where the same is due to the default of the Company) a supply is made
under the quotation or order after the end of the said period the Company
reserves the right in respect of such supply to change the price ruling at the
date the despatch of goods in like manner as in Condition 6.
DELIVERY
8. Where a quotation or acceptance or order specifies a
delivery period but the Company is unable to complete delivery without further
information or details from the Buyer and there is in the opinion of the
Company a delay on the part of the Buyer in providing the information or
details then the Company may if it wishes give notice extending the delivery
period and without prejudice to the Company’s rights to vary its prices under
Condition 6 hereof (and in the case of fixed price contracts) under Condition 7
hereof.
9. Any date or period set out herein for the delivery of the
goods or any part of them shall not be of the essence of the contract and if
the Company is prevented from delivery of goods at the time provided for
delivery by reason of any cause outside its reasonable control (including but
not so as to limit the generality of the foregoing fire, explosion, delay in
supplies, plant breakdown, interference by labour strikes or lockouts or
non-availability of transport or materials) then the date of period for
delivery shall be extended by the duration of the occurrence provided always
that if in any case the delaying factor or factors shall have operated for six
weeks or more and shall still be operating the Buyer may give written notice to
the Company to terminate the contract in respect of those goods which remain to
be delivered under the contract.
10. Where goods are delivered by instalments, each such
instalment shall be deemed to be sold or supplied under a separate contract to
which these Conditions shall apply (mutatis mutandis) and save as provided in
Condition 9 no default in respect of any one instalment shall affect or
prejudice due performance of the contract as regards any other instalments.
Goods offered “ex-stock” are offered for sale subject to them being unsold on
receipt of the Customer’s order.
11. The company shall be entitled without the prior approval
of the Customer, to assign sub contract or sub let the contract or any part
thereof, but the Customer shall not be so entitled without approval of the
Company.
TERMS OF PAYMENT
12. All goods supplied and delivered shall be paid for
within 30 days from date of invoice. If
any discount is offered by the Company then the same shall be deducted from the
net amount only if the goods are paid for within the said 30 days and value-added
tax will be added in accordance with prevailing legislation.
13. Non compliance with the Company’s terms of payment shall
constitute default without reminder. In
case of default the Company may charge interest at the rate of 1.25% per month
from the date upon which the payment falls due. In the event that the Buyer shall fail to fulfil the terms of
payment in respect of any notice the Company may in its sole discretion demand
payment of all outstanding balances whether due or not and/or cancel outstanding
orders and/or decline to make further deliveries except upon receipt of cash or
satisfactory security. Except where the
laws relating to bankruptcy and liquidation provide otherwise the Buyer shall
not be entitled to withhold or set off payment for goods delivered by virtue of
any debt claim or allegation other than a valid claim made in request of those
goods under condition 14(a) or (b) below.
WARRANTIES AND CLAIMS
14. (a) The Buyer should satisfy himself by testing samples
or otherwise of the fitness for his purpose of all goods ordered and will be
deemed and conclusively presumed to have done so. If the goods delivered differ materially from their description
or from samples supplied or are by reason of faulty material workmanship or
packing unmerchantable then the Company undertakes to replace such goods or (at
the option of the Company) to refund the purchase price or a fair proportion
thereof. This undertaking by the
Company is subject to and conditional upon the following provisions: -
(i) Claims in respect of faults readily discernible on a
reasonable examination of the goods shall be made as soon as such faults are
reasonably capable of discovery but in any event within three months of the
delivery of the goods.
(ii) Claims in respect of other faults including faults not
discernible until the goods have been in use or otherwise dealt with shall be
made as soon as the fault is reasonably discernible but in any event within six
months of the delivery of the goods to the Buyer.
(iii) All claims must be made in writing.
(iv) The Buyer must afford to the Company the opportunity to
examine any goods that are subject of a claim before the goods have been
further used or otherwise dealt with.
(v) The Company will not be liable for any damage to or
deterioration of the goods that may occur after delivery whether the same may
occur due to unsuitable storage conditions or to abuse or to any other cause
whatsoever.
(vi) Goods in respect of which any claim is made under this
condition shall be returned to the Company carriage paid for inspection or (if
return is not practicable) alternatively the Company will inspect the goods or
procure the same to be inspected in situ.
In the event the Buyer’s claim shall be upheld the Company undertakes to
reimburse the Buyer with cost of any such carriage but if the Buyer’s claim
shall not be upheld then the Company reserves the right to charge the Buyer for
all or part of the labour travelling carriage and other dues involved.
(vii) Subject to condition 26 the undertaking of the Company
to make a replacement or refund shall be the absolute limit of the Company’s
liability to the Buyer in respect of any such claim.
(b) The Company warrants that any survey advice
representation for forecast given on the part of the Company from anything said
or written in discussions or negotiations between the Company and the Buyer or
their respective agents prior to the making of the contract is given in good
faith and after due consideration of the facts before the Company but the
Company shall be under no legal liability whether in contract negligence or
howsoever in respect hereof to the Buyer or any other person except to the
extent to which there is a breach of this warranty.
15. (a) No claim for short delivery of goods or damage to
goods in transit can be entertained unless either (where this is possible) a
receipt is given to the carriers detailing the shortage or damage at the time
of delivery or alternatively notification of the shortage or damage is made to
the company within seven days from the delivery of good by the carrier.
(b) No claim for non-delivery of goods can be entertained
unless the Company is notified within seven days from the date of invoice.
16. Where goods are delivered by installments the Customer
shall be obliged to pay for each installment upon the terms set out in this
Condition.
17. Unless otherwise expressly agreed in writing, all
illustrations and dimensions shown in the Company’s catalogues and other sales
literature are approximate. The Company gives no guarantee or representation
that the goods in all cases will be identical with the illustrations and
dimensions specified in such catalogue and literature due to improvements and
modifications to the goods or their specifications that may be made from time
to time.
BUYERS DESIGN
18. Where goods are ordered in accordance with the designs
drawings and specifications or samples furnished by the Buyer or are ordered in
accordance with the Buyer’s general requirements and are approved by the Buyer
the Buyer shall indemnify the Company against all liability or alleged
liability in respect of any patents registered trade marks or any other rights
of third parties arising out of the manufacture sale or use of such goods and
against all claims demands proceedings damages costs and expenses arising in respect
of such liability or alleged liability.
19. The Company shall be entitled to reject any materials
supplied or specified by the Customer, which the Company in its judgement
considers unsuitable. Additional costs
incurred by the company if such materials are judged to be unsuitable will be
charged to the Customer. Quantities of
materials supplied by the Customer shall be adequate to cover normal spoilage.
BUYERS CANCELLATION OR ALTERATION ORDERS.
20. (a) The Buyer shall not be entitled to cancel the contract
or any part thereof without lawful cause except on such terms as to indemnify
the Company in full including loss of profit.
The Company is not bound to agree to any such cancellation and may
complete the contract notwithstanding any such purported cancellation by the
Buyer.
(b) No variation of a term of the contract (unless
specifically authorised by these conditions) shall bind either party unless
such variation is made and agreed in writing.
PASSING OF RISK
21. The risk in the goods shall pass to the Buyer when the
Company delivers the goods in accordance with the terms hereof to the Buyer or
other person to whom the Company has been authorised by the Buyer to deliver
the goods whether expressly or by implication and the Company shall not be
liable for the safety of the goods thereafter and accordingly the Buyer should
insure the goods thereafter against such risks as may be commercially prudent.
CARRIAGE
22. (a) All prices stated or referred to in the Company’s
quotation or in the Company’s acceptance of order do not include any carriage
or packing charges which (except as mentioned in paragraph (b) hereof) shall be
paid for by the Buyer.
(b) Except in the respect of a quotation or acceptance of
order where the carriage and packaging is expressly stated the Buyer to consult
the Company’s standard charges for carriage and packaging. The Company reserves
the right to alter its carriage and packaging charges by reference to the price
ruling at the date of despatch of the goods.
SAMPLE AND DISPLAY MATERIALS
23. Samples for approval will be charged at normal selling
price if not returned within 60 days.
Samples of special designs made to the requirements of the Buyer will be
charged at cost and are non returnable.
Showboards, mountings and displays will be supplied free of charge but
are returnable on request.
RESERVATION OF PROPERTY AND RIGHT OF DISPOSAL
24. (a) Title to and property in goods supplied by the
Company shall remain vested in the Company (notwithstanding delivery of the
goods and the passing of the risk in them to the Buyer) until: -
(i) the price of the goods: and
(ii) all other money due from the Buyer to the Company on
any other account has been paid or satisfied in full
(b) Title to and property in goods supplied by the Company
and delivered in Scotland or delivered elsewhere than Scotland to a carrier for
transport to Scotland shall remain vested in the Company (notwithstanding the
delivery of the goods and the passing of the risk in them to the Buyer) until
the price of the goods has been paid or satisfied in full.
(c) Until the title to and property in the goods pass to the
Buyer the following provisions shall apply: -
(i) The Company may at any time without prior notice to the
Buyer repossess and resell their goods if any of the events specified in
condition 25 occur or if any sum owed by the Buyer to the Company under this or
any such other contract or on any other account is not paid on the due date for
payment. For the purpose of exercising
its rights under this sub-paragraph (i) the Company its employees or agents
together with all vehicles and plant considered by the Company to be necessary
shall be entitled at any time without prior notice to the Buyer to free and
unrestricted entry upon the Buyer’s premises and or other locations where any
of the goods are situated:
(ii) The Buyer shall store the goods in a proper manner
without charge to the Company and ensure that they are clearly identified as
belonging to the Company. Without
prejudice to sub paragraph (c)(i) of this condition the Company shall been
entitled to examine the goods in storage at any time during normal business
hours and upon giving the Buyer reasonable notice of its intention to do so.
(iii) The rights and remedies conferred upon the Company by
this condition are in addition to and shall not in any way prejudice limit or
restrict any other rights or remedies of the Company.
(d) Until the Company is paid in full for all the goods the
relationship of the Buyer to the Company shall be fiduciary in respect of the
goods and if the same are sold by the Buyer the Company shall have the right to
trace the proceeds thereof according to the principles in re Hallet’s Estate
(1880) 13ChD696 (1874 to 80) All England reports (page 793) A like right for
the Company shall apply where the Buyer uses the product in any way so as to be
entitled to payment from a third party.
(e) Nothing in this clause shall entitle the Buyer to return
the goods unless requested so to do by the Company.
(f) For the purpose of these Conditions and in the absence
of evidence to the contrary goods supplied at any time by the Company to the
Buyer shall be deemed to have been resold used or processed in the order in
which they were supplied.
BREACH
25. If the Buyer: -
(a) defaults in or commits any breach of any of its
obligations (including as to payment of price) to the Company hereunder or
(b) is involved in any legal proceedings in which solvency
is a question or
(c) is a Company and any meeting is convened or resolution
is passed or petition is presented (otherwise than for reconstruction or
amalgamation) to wind it up or a receiver is appointed or
(d) ceases or threatens to cease carrying on trade.
Then in each such case the Company shall immediately become
entitled (without prejudice to its other claims and rights under the contract)
to suspend further performance of the contract for such time as it shall in its
absolute discretion think fit or (whether or not notice of such suspension
shall have been given) to treat the contract as wrongfully repudiated by the
Buyer and forthwith terminate the contract.
Notwithstanding any such termination, the Customer shall pay
to the Company for all work done, materials used and goods delivered up to and
including the date of termination and shall in addition indemnify the Company
against any resulting loss, damage or expense incurred by the Company in
connection with the non performance of the contract including the cost of any
material, plant or tools used or intended to be used therefore and the cost of
labour and other overheads including a percentage in respect of profit.
LIMITATION OF LIABILITY
26. It is expressly stipulated that in the event of any
claim on any grounds being made by the Buyer against the Company in respect of
the goods or any matter arising from or in connection to the contact relating
thereto the liability of the Company shall be limited (in respect of each claim
or series of connected claims) to the invoice value of the goods and under no
circumstances shall the Company be under any further liability to the Buyer
whether for loss of profit or for any other direct or consequential loss
howsoever arising.
WAIVER
27. No failure, forbearance, delay or indulgence by the
Company in enforcing its right shall prejudice or restrict such rights and no
waiver of any such rights or any breach of any contractual term shall be deemed
to be a waiver of any other right or of any other breach.
GOVERNING LAW
28. All contracts shall be governed by English law in the
event of any dispute whether of interpretation or otherwise or as to the
liability either of the Company or the Buyer arising out of the sole use or
operation or failure to operate of the goods or of any part thereof the same
shall be determined by the English courts of the law to whose jurisdiction the
Company and the Buyer hereby submit.
NOTICES
29. Any notice to be given by either party to the other
shall be in writing and any notice or other document may be served either by
delivering it by hand or by sending it by post or fax to the address of the
Company appearing in the Company’s quotation and in the case of the Buyer to
the address of the Buyer appearing on the Company’s quotation or such other
address as the Buyer may from time to time have communication to the Company in
writing for the service of notices upon it.
Service by delivery by hand shall be deemed to be effected upon delivery
to the relevant address, service by post two days following the date of posting
and service by fax upon the transmission of the relevant communication and the
receipt by the transmitting fax machine of the appropriate answer back code.
PREVIOUS CONDITIONS
30. These Conditions supersede all previous UK conditions of
sale of the Company.
CONSTRUCTION
31. (a) If at any time one or more of the above Conditions
becomes in whole or in part invalid illegal or unenforceable in any respect
under the law the validity legality and enforceability of the remaining
provisions thereof and of the other Conditions herein shall not in any way be
affected or impaired thereby.
(b) the sub heading of these Conditions are not to be
regarded as part thereof.
LIEN
32. (i) without prejudice to any other rights and remedies
which the Company may have, the Company shall in respect of all debts of the
Buyer to the Company have a general lien on all tools, goods and other property
belonging to the Buyer in the Company’s possession (whether worked on or not).
(iii) The Company shall be entitled upon the expiration of
14 days notice to the Buyer, to dispose of such tools, goods or property as it
thinks fit and apply any proceeds of sale thereof towards the payment of such
debts
VALUE ADDED TAX
33. All prices and charges quoted above and any associated
fees are exclusive of Value Added Tax, which will be added in accordance with
prevailing legislation.
