TERMS AND CONDITIONS OF SALE
1. Definitions
1.1 In these Conditions:
‘ACCEPTANCE’ means acceptance by the Seller of the Customer’s Order in accordance with clause 3 ‘CUSTOMER’ means the person, firm or company whose Order is accepted by the Seller
‘CONDITIONS’ means these standard terms and conditions of sale
‘CONTRACT’ means the contract for the purchase and sale of the Goods between the Customer and the Seller
‘DELIVERY’ means the delivery of the Goods by the Seller to the Customer in accordance with these Conditions and the word ‘Delivered’ shall be construed accordingly
‘DELIVERY COMPANY’ means an independent third party with whom the Seller contracts to store, package and deliver the Goods
‘DELIVERY DATE’ means the date and time specified in the Order and agreed by the Seller
‘DELIVERY LOCATION’ means the address specified in the Order
‘FORCE MAJEURE’ means any circumstances beyond the party’s reasonable control including but not limited to fire, explosion, adverse weather conditions, import or export regulations, civil commotion, strikes, lock-outs, other industrial actions or trade disputes (whether involving the party’ employees or those of a third party), court order or injunction, government intervention (including refusal or revocation of any licence or consent) or the default of suppliers or sub-contractors (where such delay is beyond the reasonable control of such supplier or sub-contractor.
‘GOODS’ means the goods specified in the Order, including any consignment thereof which the Seller is to supply in accordance with these Conditions
‘INVOICE’ means the Seller’s invoice for the purchase and sale of the Goods
‘INVOICE DATE’ means the date of the Invoice
‘ORDER’ means the order for the purchase and sale of the Goods containing the Specification and placed by the Customer with the Seller made in accordance with clause 3 hereof
‘ORDER FORM’ means the Seller’s standard order form incorporating these Conditions
‘PRICE’ means the price of the Goods stated in the Order
‘SELLER’ means Peartree Heybridge Limited whose registered office is at Stuart House, 15-17 North Park Road, Harrogate, North Yorkshire HG1 5PD (Company no. 04684592)
‘SPECIFICATION’ means the quantity, quality and description of and any other specification relating to the Goods set out in the Order.
‘TOTAL’ means the Price and any other sums due to the Seller under clause 4.2
2. Basis of the sale
2.1. The Seller shall sell and the Customer shall purchase the Goods in accordance with any Order subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
2.2. No variation to these Conditions shall be binding unless agreed in writing by the properly authorised representatives of the Seller.
2.3. Any Price quoted by the Seller prior to Acceptance shall not be an offer by the Seller but shall be deemed to be an invitation to treat.
2.4. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller
3. Orders and specifications
3.1. Orders may be made in a variety of different ways, including, in writing or by facsimile to the Seller on the Seller’s Order Form, by phone to a member of the Seller’s sales team, or through the Seller’s authorised representative.
3.2. The Customer shall ensure that the Order is accurate and that all the information reasonably required by the Seller relating to it is provided to the Seller in sufficient time to enable the Seller to perform the Contract in accordance with the Conditions.
3.3. The Seller reserves the right to reject any Order.
4. Price
4.1. The Price is exclusive of any value added tax applicable from time to time or any other duties or charges whatsoever (including, without limitation, any export or import duties, or packaging or delivery charges under clause 4.2) for which the Customer shall be additionally liable.
4.2. Where the Delivery Location is otherwise than at the Seller’s premises, the Customer shall be liable to pay the Seller’s reasonable charges for transport, packaging and insurance together with the Price.
5. Terms of payment
5.1. The Seller shall be entitled to invoice the Buyer for the Price on or at any time after Delivery, unless the Buyer wrongfully fails to take Delivery, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered Delivery.
5.2. The Customer shall pay the Total (without any deduction counterclaim or set off for any reason) within 30 days of the Invoice Date, and the Seller shall be entitled to recover the Total, notwithstanding that Delivery may not have taken place and the property in the Goods has not passed to the Customer. The time of payment of the Total shall be of the essence of the Contract. Receipts for payment will only be issued upon request.
5.3. If the Customer fails to pay to the Seller the Total by the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1. cancel any contracts with the Customer or suspend any further deliveries to the Customer under this or any other contract; and
5.3.2. charge the Customer interest on the amount unpaid accruing daily at the rate of 2% per cent above the base rate of NatWest Bank plc from time to time until payment in full is made, which shall accrue at such a rate after as well as before any judgement.
6. Delivery
6.1. Delivery of the Goods shall be made by the Delivery Company delivering the Goods to the Seller’s premises. The Seller need only notify the Customer that the goods are ready for collection.
6.2. The Delivery Date is approximate only and the Seller shall not be liable for any delay in the Delivery howsoever caused. The time of Delivery shall not be of the essence of the Contract.
7. Risk and property
7.1. Risk of damage to or loss of the Goods shall pass to the Customer upon Delivery.
7.2. Notwithstanding Delivery and the passing of risk in the Goods, or any other provision of these Conditions, the beneficial title and property in the Goods shall not pass to the Customer until the Seller has received in cash or cleared funds payment in full of the Total and all other goods agreed to be sold by the Seller to the Customer for which payment is then due.
7.3. Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Seller’s property, but shall be entitled to resell or use the Goods in the ordinary course of its business.
7.4. Until such time as the title in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Customer to deliver up the Goods to the Seller and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods immediately.
8. Warranties and liability
8.1. The Seller warrants that the Goods will be of good and satisfactory quality and will correspond with the Specification at the time of Delivery.
8.2. Subject as expressly provided in these Conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law and the Seller shall not be liable to the Customer for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) whether arising out of or in connection with the supply of the Goods or their use or resale by the Customer.
8.3. Notwithstanding clause 8.2, the entire liability of the Seller under or in connection with any Contract shall not exceed the Price.
8.4. The Customer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement resulting from the Seller’s use of any specification or instructions provided by the Customer of any copyright, registered or unregistered design, trade mark, trade name.
8.5. Nothing in this agreement shall operate to exclude the Seller’s liability for death or personal injury arising as a result of the Seller’s negligence.
9. Insolvency of Customer
9.1. Without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel any contract with the Customer or suspend any further deliveries to the customer without any liability to the Customer, and if any Goods have been delivered but not paid for the Total shall become immediately due and payable if:
9.1.1. the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
9.1.2. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
9.1.3. the Customer ceases, or threatens to cease, to carry on business; or
9.1.4. the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer
10. General
10.1. Any notice required or permitted to be given under the Conditions shall be in writing and served on either of the parties by the other and shall be sent by prepaid recorded delivery or registered post to the registered office or principal place of business of the relevant party or by facsimile or by electronic mail. Such notices shall be deemed to have been received by the addressee within 48 hours of posting or 24 hours if sent by facsimile or by electronic mail to the correct facsimile number or correct electronic mail number of the addressee notified to the other party for that purpose.
10.2. No waiver by the Seller of any breach of the Contract or of the Conditions by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.3. If any provision of the Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Conditions and the remainder of the provision in question shall not be affected.
10.4. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract and no person who is not a party to this Contract (other than a successor in title to one of the original parties) shall be entitled in that person’s own right to enforce any provisions of this Contract pursuant to the provisions of the said Act.
10.5. This Contract may not be assigned in whole or in part, but is binding upon and shall enure for the benefit of the parties personal representatives and other successors.
10.6. These Conditions (together with any documents referred to herein) contain the entire Contract and understanding of the parties and supersede all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter of this Contract.
10.7. Each of the parties acknowledges and agrees that it does not enter into the Contract and the documents referred to herein and on the basis on and does not rely, and has not relied upon any statement or representation (whether negligent or innocent) or warranty or other provisions (in any case whether oral, written, express or implied) made, given or agreed to by any person (whether a party to this Contract or not) except those expressly set out or referred to in this Contract and the documents referred to herein and the only remedy or remedies available in respect of any misrepresentation of untrue statement made to it shall be a claim for breach of contract under this Contract; and clauses 10.6 and 10.7 shall not apply to any statement, representation or warranty made fraudulently or to any provision of this Agreement which was induced by, or otherwise entered into as a result of, fraud, for which the remedies shall be those available under the law governing this Agreement
10.8. The Contract and the Conditions shall be governed by and construed in accordance with the laws of England, and is within the exclusive jurisdiction of the English courts.