APPLICATION Part I of these conditions shall apply to all sales.
The additional conditions contained in Part 2 shall apply only in the case of sales by Elliott Brothers Limited (The Seller) to persons, companies or organisations acquiring the goods in the course of a business or holding themselves out to the Seller as acquiring goods in the course of a business.
1.1 Unless otherwise agreed in writing by the Seller these conditions shall apply to all orders accepted by the Seller for all goods supplied by the Seller and all services provided by the Seller and these conditions of sale shall constitute the entire contract between the Seller and the Buyer.
1.2 An order by the Buyer placed with the Seller shall be deemed to be placed upon the terms of these standard conditions of sale and in the absence of express written agreement on behalf of the Seller signed by a director of the Seller no conditions (whether attached to the order or otherwise) shall apply save for these conditions.
1.3 No variation of these conditions of sale shall be valid unless agreed in writing by the Seller and signed by a director of the Seller.
1.4 The terms hereof including any exclusions and limitations of liability which in respect of any particular contract of sale and statute are void or voidable in whole or in part shall take effect subject to such statutory provision and these terms and conditions shall be construed as if any term which is void or is avoided in respect of any particular contract were deleted but without prejudice to the validity of the remainder of these terms and conditions and so that such deletion shall only take effect so far as may be necessary to sever the term or part of a term found to be void or which is avoided.
1.5 Any condition or warranty implied into this contract by statute shall apply only insofar as it is not hereby lawfully excluded and no other implied condition or warranty shall apply.
All quotations given by the Seller:-
2.1 Shall constitute an invitation to the customer to make an offer on the terms set out herein and all quotations are made subject to alteration and withdrawal by the Seller without notice.
2.2 Shall in the event of any increase in transport costs wages manufacturers costs or the costs of materials be increased accordingly and this provision shall take effect up to the date of delivery.
2.3 Do not include any provision (unless otherwise stated) for Value Added Tax import duties or any other Revenue charge.
- TERMS AS TO PAYMENT
3.1 Unless otherwise stated by the Seller in writing payment shall be made in full on or before the last day of the month following that in which the goods were delivered or made available for collection. If the purchase priced is not paid within this period then without prejudice to any other rights of the Seller it may:-
3.1.1 Charge and recover from or add to the account of the Buyer interest on any outstanding accounts at 2% per month (or such other interest rate as the Seller may decide provided that the interest rate shall not be changed by the Seller unless notice of the intended change has been given) and the Seller shall be entitled to add the interest so charged to the Buyer’s account each month so that it shall form part of any balance owing and so that any future interest shall be compounded and such interest shall be chargeable as well after judgement as before.
3.1.2 In the case of instalment or periodic deliveries withhold any further deliveries until due payment is made.
3.2 All quotations and offer prices are exclusive of value added tax and value added tax will where appropriate be added to invoices at the rate applying at the date of the invoice.
3.3 If at any time (and whether before or after a contract has come into existence between the Seller and the Buyer) any circumstances or matters come to the knowledge of the Seller which reasonably make the Seller doubt the credit worthiness of the Buyer then the Seller shall be entitled to serve notice upon the Buyer requiring payment for the goods or services or goods and services to be supplied to be paid forthwith and in advance and if the Buyer shall fail to comply with such notice within the period of seven days then the Seller shall be entitled to (but not bound to) treat the contract as discharged and shall notify the Buyer in writing whereupon any contract between the parties shall be deemed to have been discharged and any part payment made by the Buyer shall be returned to it and neither party shall have any further liability to the other.
- DELIVERY AND ACCEPTANCE
4.1 The Buyer shall be responsible for providing the necessary labour to unload and stack the goods.
4.2 If goods are delivered to a site the Seller’s obligation is limited to delivery at a point on a safe hard road nearest to the site.
4.3 Acceptance shall be deemed to have taken place unless the Seller receives written notice to the contrary within seven working days after the date of delivery.
4.4 The Buyer shall be liable to pay storage charges at the rates from time to time stipulated by the Seller in the event of the Seller retaining the goods following the Buyer’s refusal to accept delivery.
4.5 The Seller will make every reasonable endeavour to carry out its contractual obligations within a reasonable period but time for delivery or for fixing shall not be of the essence of the contract.
4.6 Should the Seller be prevented from or delayed in fulfilling the terms of this contract by lockout strikes riots civil commotion war fire adverse climatic conditions or act of God or any other circumstances beyond the control of the Seller whether the same shall prevail at the Seller’s premises or at the place of manufacture or in transit the Buyer shall not be entitled to refuse delivery until the expiration of a reasonable period specified in a notice to be served by the Buyer on the Seller after the anticipated delivery date but if the Seller shall consider that this agreement is frustrated it shall be entitled to give written notice of such frustration to the Buyer and neither party shall have any further liability to the other arising out of this contract.
- DAMAGE SHORTAGE OR LOSS IN TRANSIT
5.1 The Seller is authorised to send the goods to the Buyer by way of an independent carrier and delivery of the goods by the Seller to an independent carrier shall be deemed delivery to the Buyer.
5.2 The Buyer shall notify the Seller as soon as reasonably practicable of any alleged damage or shortage on delivery and in the case of delivery by an independent carrier shall notify the carrier within the period required by its condition of carriage.
- RETURNABLE PACKAGES
Where charged extra and returned in good condition with carriage paid they will be credited to the Buyer’s account.
- BUYER’S INSOLVENCY
Without prejudice to clause 8 below if the Buyer becomes insolvent or compounds or makes any arrangement with his creditors or has any receiver or administrative receiver or administrator appointed in respect of his or its assets or being an individual has a bankruptcy petition issued against him or being a company has a winding petition presented against it or passes a resolution to wind up then in any such case the Seller may declare the contract to be cancelled in the case of a contract of sale or agreement to sell and shall be entitled to withhold any undelivered goods or to repossess any goods delivered and unpaid for and resell the same and any loss sustained on the resale shall be a debt due by the Buyer to the Seller.
- PROPERTY IN GOODS
8.1 Notwithstanding delivery and passing of risk in the goods or any other of the provisions 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 and all other goods and services supplied or agreed to be supplied by the Seller to the Buyer for which payment has not been made.
8.2 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 and shall keep the goods separate from those of the Buyer and third parties and properly stored protected and insured and identified as the Seller’s property.
8.3 Until such time as the property in the goods passes to the Buyer the Buyer shall be entitled to resell or use the goods in the ordinary course of its business but shall account to the Seller for proceeds of sale or otherwise of the goods whether tangible or intangible including insurance proceeds and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and in the case of tangible proceeds properly stored protected and insured.
8.4 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 enter upon any premises of the Buyer or any third party where the goods are stored and repossess the goods.
8.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Seller.
The risk shall pass to the customer upon the earliest of the following event namely:-
9.1 Forthwith upon delivery of the goods to the Buyer or an
9.2 Forthwith upon the goods being delivered in accordance with the Buyer’s direction or order or
9.3 Forthwith upon the Buyer refusing to accept delivery of the goods.
- BUYER PLANS AND DRAWINGS
10.1 The Seller shall not be under any obligation to exercise care and skill in checking any plans or drawings supplied by the Buyer and it shall be for the Buyer to ensure that all such plans and drawings are correct and accurate.
10.2 Illustrations photographs weights dimensions and descriptions in catalogues and trade literature are intended as a general guide to goods only and are not intended to form the basis of a sale by description.
The Buyer and Seller each agree that in entering into this contract they have not relied upon any representation or statement made by or on behalf of the other of them before the contract was entered into save for a representation made in writing and signed by or on behalf of the representor and in the case of the Seller by a director of the representor and the parties hereto agree that neither shall have any liability in respect of any representations or statements made save in the case of such written and signed representations.
12.1 Liability shall mean liability in contract or in tort and whether arising from breach of contract or alleged breach of contract or negligence or alleged negligence by the Seller or its servants agents or employees and the word liable shall be construed accordingly.
12.2 In this paragraph the phrase “consequential loss” shall be deemed to include economic loss, damage to any property other than the goods supplied pursuant to this contract, any building or engineering works or other remedial works necessary or alleged to be necessary by reason of any breach of contract or negligence of the Seller and any liability of the Buyer to any third party (save in respect of death or personal injury) but shall not include any loss for or arising out of death or personal injury.
12.3.1 Paragraph 4.5 and 4.6 hereof shall apply
12.3.2 If notwithstanding sub paragraph 12.3.1 hereof the Seller is (subject as hereinafter mentioned) liable to the Buyer for any delay in delivery of the goods then:-
18.104.22.168 The Seller shall have no liability in respect of any consequential loss.
22.214.171.124 Any liability which the Seller may have shall be limited (in the case of contracts for the supply of goods) to the supply of the goods contracted to be supplied or (in the case of contracts for the supply of goods and services) to the supply of the goods contracted to be supplied and the fixing of any such goods (but not any other works whether or not necessary for such fixing to take place) or if such supply or fixing is deemed by the Seller to be impracticable then the repayment or crediting by the Seller to the Buyer of any monies paid by the Buyer together with the release of the parties hereto from the contract of if the contract shall have been partially completed by the Seller then the repayment or crediting of a proportion of the contract price appropriate to the unfulfilled part of the contract together with a mutual release by the parties in respect of such unfulfilled part of the contract.
12.4 The Buyer agrees:-
12.4.1 Not to use the goods other than for their normal and proper use and not to alter or modify or otherwise interfere with them and
12.4.2 Not to use the goods in a negligent way or otherwise than in accordance with any written instructions or requirements.
DEFECTS DAMAGE OR SHORTAGE IN RESPECT OF PART
Defects damage or shortage in respect of any part of an order shall not be a ground for cancellation of the remainder of the order.
This contract shall in all respect be construed and operate as an English contract and in accordance with English law and all disputes shall be under the exclusive jurisdiction of the English Court.
- INSPECTION AND SUITABILITY OF GOODS
15.1 The Buyer shall be responsible for ensuring that any goods supplied comply with any relevant planning laws or regulations codes of practice building regulations or any other statutory trade or local requirement and the Seller gives no warranty or representation as to compliance with any such requirement.
15.2 The Buyer shall satisfy himself that goods ordered are suitable and fit for the purpose for which the Buyer requires them and the Buyer shall be deemed not be relying upon the Seller’s judgement as to the fitness of the goods for the Buyer’s purpose unless the Seller agrees in writing that the Buyer is relying upon its skill and judgement as to the fitness of the goods for the purpose required by the Buyer.
15.3 Any samples submitted are intended to give an approximate idea of general quality and no condition or warranty is given or implied that goods will in all respects correspond to sample.
- FURTHER LIMITATIONS ON SELLERS LIABILITY
16.1 Liability and consequential loss shall have the meanings respectively given in paragraph 12.1 and 12.2 hereof.
16.2 The Seller shall have no liability to the Buyer in respect of any consequential loss and the Seller and Buyer agree that the Buyer is on notice to ensure that he has insurance accordingly or if not that he should effect insurance accordingly.
16.3 Subject to the next following sub paragraph hereof any liability which the Seller may have shall be limited (in the case of contracts for the supply of goods) to the repair replacement or supply of the goods supplied or contracted to be supplied or (in the case of contracts for the supply of goods and services) to the repair replacement or supply of the goods supplied or contracted to be supplied and the fixing or refixing of any such goods (but not any other works whether or not necessary for such fixing or refixing to take place) or if such repair replacement supply fixing or refixing is deemed by the Seller to be impracticable then the repayment or crediting by the Seller to the Buyer of any monies paid by the Buyer together with the release of the parties hereto from monies paid by the Buyer together with the release of the parties hereto form the contract or if the contract shall have been partially completed by the Seller then the repayment or crediting of a proportion of the contract price appropriate to the unfulfilled part of the contract together with a mutual release by the parties in respect of such unfulfilled part of the contract.
16.4 The Seller shall not in any event have any liability whatsoever in respect of any loss or damage where the Buyer is in breach of the agreement contained in paragraph 12.4 hereof.
DATA PROTECTION ACT
It is company policy to use credit reference agencies, and in processing your application we and they may record those enquiries (including enquiries about individual directors and shareholders). In the unlikely event of payment problems occurring, we may pass the information to a licensed credit reference agency. The information will be retained during the period of any credit given and may be used when assessing further applications for credit terms, for debt collection, for tracing and fraud prevention.
In submitting this application you confirm that you have the consent of the individual directors and shareholders to the use of their personal information in this way. In addition, we may transfer details about you, (but not about your directors and/or shareholders) to our financiers who may use, analyse and assess information about you, including the nature of your transactions, and exchange such information with other members of their group of companies and others for credit or financial assessment, market research, statistical analysis, insurance claims, underwriting and training purposes. The company will collect and process personal information in accordance with its obligations under the Data Protection Act 1998.