Unless otherwise expressly agreed in writing by a Director of the Company (Where 'Company' is Alexander Creswell Partnership) all goods are sold upon the following terms and conditions and no agent or representative of the Company has any authority to vary or omit these terms and conditions or any of them. Any terms and conditions printed on the buyer’s order forms are binding only insofar as they are not at variance with these terms and conditions and they have been specifically agreed to in writing by a Director of the Company.
2 ACCEPTANCE AND VARIATION OF PRICE
2.1 Quotations issued by the Company whether verbally or in writing do not constitute offers and are subject to the Company's acceptance on receipt of the buyer’s order and no contract shall be concluded until such written acceptance is given or until the Company has indicated its acceptance of the offer by making delivery or part delivery of the goods Provided Always that all deliveries are made subject to these Terms and Conditions of Sale.
2.2 All prices quoted or listed by the Company are based on the prices of the Company’s suppliers or the company’s estimated costs at the time of quotation or listing and are subject to adjustment prior to despatch to cover any increase in such prices or costs or in taxation or duty which might take place prior to delivery and such prices (which include the cost of packaging goods) are ex-works and net of Value Added Tax or other excise duty.
2.3 Where goods are to be exported the Company reserves the right to vary the price quoted to reflect the rate of exchange for purchase of the relevant currency in pounds sterling.
3.1 The Company will use all reasonable endeavours to deliver at the time stated but delivery dates shall be regarded as estimates only and time shall not be of the essence. The Company shall not be liable for any loss or damage whatsoever arising directly or indirectly from any failure to effect delivery within the estimated period or otherwise.
3.2 Goods shall be deemed to be delivered when they leave the premises of the Company and on delivery the risk of destruction loss or damage shall pass to the buyer.
3.3 In the case of delivery of goods by instalments the buyer will not be entitled to treat the delivery of faulty goods in any one instalment or the late delivery or non-delivery of any one instalment as a repudiation of the whole contract.
3.4 If the buyer fails to give delivery instructions within 14 days of it being notified the goods are ready for delivery the Company shall (without prejudice to any other rights or remedies available to it) be entitled (but not bound) to store the goods at any available place at the buyer's expense.
3.5 Unless otherwise stated goods will be consigned by goods train or road transport to the address in the United Kingdom specified by the buyer in writing.
3.6 The costs of carriage will be charged to the buyer on the invoice for the goods at the time of despatch unless otherwise agreed in writing.
4 RISK AND TITLE TO GOODS
4.1 The risk in the goods passes to the buyer upon delivery but property in the goods remains vested in the Company and shall only pass from the Company to the buyer upon full payment being made by the buyer of all sums due on whatsoever account or grounds to the Company from the buyer. In the event of the goods being sold by the buyer in such manner as to pass to a third party a valid title to the goods, whilst any such sums are due as aforesaid, the buyer shall be the trustee for the Company of the proceeds of such sale or to the claim for such proceeds and the buyer shall place such proceeds in a separate bank account. The Company's rights under this subclause 4.1 shall attach to the proceeds of such sale. Nothing herein shall constitute the buyer the agent of the Company for the purposes of any such sub-sale.
4.2 The buyer agrees that prior to full payment being made as aforesaid the Company may at any time repossess the goods and enter upon the buyer’s premises and remove the goods therefrom (and dispose of the same in any manner it may decide) and that prior to such payment the buyer shall keep such goods as fiduciary agent and bailee and separate and identifiable for this purpose.
4.3 In the event of the goods becoming constituents of or being converted into other products whilst sums are due as provided in subclause 4.1 hereof the Company shall have the ownership of and title to such other products (but not by way of a charge) as if they were the goods and accordingly this Clause 4 shall so far as appropriate apply to such other products subject to the buyer’s right to the surplus of any moneys realised by the said products in excess of those due to the Company as provided herein.
4.4 Any implied authority that the buyer shall be entitled to sell the goods and pass property in the same to third parties in the normal course of its business or manufacture products out of the same or sell such products will continue until otherwise notified to the buyer by the Company or until the happening of any of the following events:-
4.4.1 any notice to the buyer that an Administrative Receiver or other Receiver or Manager is to be or has been appointed in respect of its undertaking or a material part thereof or other property or assets.
4.4.2 any notice to the buyer that a petition to wind up the buyer is to be or has been presented to the buyer under Section 124 of the Insolvency Act 1986 or otherwise or any notice to the buyer of a proposal to pass a Resolution to wind up the buyer (including any proposal by the buyer so to do).
4.4.3 a decision by the buyer to make a voluntary arrangement or composition with its creditors or any notice to the buyer and/or any of its creditors that a proposal for the same is to be or has been made.
4.4.4 the buyer becoming unable to pay its debts as such expression is defined by the Insolvency Act 1986.
4.4.5 any notice to the buyer that it is to be the subject of a petition for an Administration Order presented to the Courts or the making of an Administration Order in respect of the buyer and upon the happening of any such events the buyer shall immediately notify a Director of the Company.
4.5 On receipt of written notice from the Company or on the happening of any of the events set out in sub-clause 4.4 above the buyer’s implied authority to sell the Company’s goods shall be immediately withdrawn and all such goods and products made therefrom shall immediately be delivered to the Company.
5 NOTIFICATION OF LOSS OR DAMAGE
The Company must be informed in writing within three days of delivery of goods in the event of any shortage or damage and within seven days of receipt of invoice if the goods have not been delivered otherwise the goods shall be deemed to have been accepted by the buyer as being in good order and in conformity with the contract.
6.1 Payment is strictly net cash to be made by the due date stated on the invoice or, in the absence of any such stated date, within 30 days of the invoice date. Failure to make due payment in respect of deliveries or instalments under this or any other contract between the buyer and the Company shall entitle the Company to delay, suspend or cancel deliveries in whole or in part at its option. In the event of payment made via credit card, a 2% fee will be added to all orders less than £100 (inc VAT) in value.
6.2 If payment is not made in full by the due date the Company reserves the right to charge interest to the buyer at the rate of 6% per annum above the base rate from time to time of Natwest Bank plc on the unpaid balance (such interest to accrue on a day to day basis from the due date (as well after as before any judgement) ).
6.3 Payment shall be due whether or not property in the goods has passed by virtue of Clause 4 above and the Company shall (without prejudice to any other right or remedy) accordingly be entitled to sue for the price once the same is due even if property in the goods has not passed.
7.1 The buyer shall inspect the goods upon delivery. The Company will make good at its option by repair or replacement any defects in the goods due solely to defective workmanship or materials which are notified in writing to the Company and in the case of any defect discoverable upon reasonable examination such notification must be made within fourteen days from the date of delivery and in the case of any defect not discoverable upon reasonable examination such notification must be made within seven days of the date such defect is actually discovered provided that:
7.1.1 the said obligations on the Company shall not extend to defects caused by wilful damage negligence (other than by employees or agents of the Company) incorrect storage or application movement installation or defects caused by fair wear and tear; and
7.1.2 if required by the Company and at the buyer’s cost the goods are returned within fourteen days of notification of the defect packaged and transported in accordance with the Company’s requirements; and
7.1.3 the said obligations on the Company shall in any event only apply where the use of the relevant product has not exceeded its normal useful product life or, if shorter, for a maximum period of twelve months (or three months in the case of rechargeable batteries) from the date of purchase.
7.2 Save as herein set out and for liability for death or personal injury resulting from negligence on the part of the Company and save for breach of the Company’s statutory implied undertakings as to title all express or implied conditions representations or warranties as to description, quality or fitness of the goods or otherwise are expressly excluded.
7.3 Except as provided in S.2 of the Unfair Contract Terms Act 1977 (liability for death or personal injury resulting from negligence) the company accepts no responsibility in any circumstances for any direct, indirect or consequential loss or damage, however arising, which the purchaser may sustain in connection with goods supplied under the contract whether such goods are of the companies own manufacture or not.
8 FORCE MAJEURE
The Company shall be excused from liability to the buyer if performance of the contract is prevented or hindered (in particular if an agreed delivery date is delayed) by any cause whatsoever beyond the Company’s control and in particular but without prejudice to the generality of the foregoing by Act of God war riot civil commotion Government controls restrictions or prohibitions or any other Government act or omission whether local or national fire flood subsidence sabotage accident strike or lock out and shall not be liable for any loss or damage resulting therefrom suffered by the buyer.
9 SAFETY INSTRUCTIONS
The buyer undertakes with the Company that it will ensure compliance so far as is reasonably practicable by its employees agents licensees and customers with any instructions given by the Company or the manufacturer for the purpose of ensuring that the goods will be safe and without risk to health when properly used and will take any other steps or precautions as having regard to the nature of the goods as are necessary to preserve the health and safety of persons handling using or disposing of them.
10 INTELLECTUAL PROPERTY RIGHTS
The Company endeavours not to offer for sale equipment which infringes known and valid patents or other intellectual property rights but shall not be liable in any manner whatsoever to the buyer and/or its customers for any costs damages or loss of profits arising from the use or sale of the goods which infringe or allegedly infringe any patent registered design copyright or other intellectual property rights of any third party.
11.1 The Company may by notice to the purchaser cancel all or any part of any contract forthwith in the event that:-
11.1.1 the buyer is in breach of any of these terms and conditions; or
11.1.2 the buyer infringes any intellectual property rights of the Company in any manner whatsoever; or
11.1.3 the buyer exceeds any credit limit imposed by the Company; or
11.1.4 the buyer (being an individual) becomes bankrupt within the meaning of the Insolvency Act 1986 or otherwise makes any composition or arrangement with his creditors or (being a company) shall enter into liquidation (whether voluntary or compulsory) or shall have a receiver or administrative receiver appointed over any part or all of its assets or undertaking or shall be the subject of any petition presented to the court for the appointment of an administrator.
11.2 Termination of the contract in any manner whatsoever shall be without prejudice to the rights of either party accrued as at the date of termination.
12 LEGAL INTERPRETATION
Any agreement to which these terms and conditions apply shall be governed and construed in accordance with English Law and any dispute arising out of or in connection with such agreement shall be determined by the English Courts.
13 SEVERANCE AND WAIVER
13.1 In the event of any part of these conditions being ineffective for any reason, the remainder thereof shall constitute the conditions binding upon the parties.
13.2 Failure or neglect by the Company to enforce at any time any of the provisions hereof shall not be construed as nor be deemed to be a waiver of the Company’s rights hereunder nor shall such failure or neglect in any way affect the validity of the whole or any part of these terms and conditions and the Company's right to take subsequent action shall not be prejudiced thereby.