These Conditions of Sale ("the Conditions") supplied by Deakin & Francis Limited ("the Company") to a purchaser ("the Buyer") shall be incorporated into each contract ("the Contract") made by the Company for the sale of the Company's goods ("the Goods"). The Company contracts as aforesaid upon such terms as are agreed between the Company and the Buyer and upon the terms of the Conditions alone. No conditions or terms of the Buyer shall apply to this contract. No variation of any of the Conditions shall be effective unless in writing and signed by a duly authorised representative of the Company.
Quotations and Acceptance of Orders
The Contract shall become binding only upon the confirmation of acceptance of any order by the Company in writing and accordingly all quotations, or tenders made and price or product lists supplied by the Company shall be treated as invitations to treat only.
If goods are supplied in accordance with the Buyer's specifications ("the Specification") the Buyer shall be solely responsible for the Specifications and ensuring that they are accurate.
Carriage and Packaging
- Unless otherwise specified by the Company all prices quoted are ex-works and carriage is charged at cost.
- Packaging for the Goods shall be at the discretion of the Company, which shall have the right to pack the Goods in such manner and with such materials and in such quantities as it in its absolute discretion thinks fit unless detailed packaging instructions are received from the Buyer prior to agreeing a price for the Goods.
- All prices shall be stated by the Company
- All prices shall be exclusive of Value Added Tax and other taxes from time to time in force.
- All prices stated shall be subject to variation at the sole discretion of the Company at any time without prior notice and the Company shall notify the Buyer of any variation before delivery of the Goods.
- Liability for payment for the Goods supplied shall arise on delivery and payment shall be due thirty days from the date of the invoice or as otherwise specifically agreed in writing by the Company. Where the Contract is to be fulfilled in separate instalments, deliveries and part payments for each delivery shall be made as if the same constituted a separate contract. Payment shall be due and the Company shall be entitled to sue for the price whether or not property in the Goods has passed by virtue of Clause 10.
- Sums unpaid after the due date shall bear interest until the day payment is received at the rate of 5% per annum above the base rate from time to time of the Bank of England accruing from day to day from the date of delivery until the date of payment in full.
- If the recovery of sums outstanding from the Buyer is passed to a Debt Collection Agency the Buyer shall pay the Company's costs in instructing the said Debt Collection Agency and all ancillary legal costs.
- Without prejudice to any other rights or remedies of the Company, any default by the Buyer in making payment on the due date shall entitle the Company to suspend deliveries under the Contract, or any other contract so long as the default continues and to treat the Contract as repudiated by the Buyer and determined if the Buyer has not within 14 days of receiving written notice from the Company paid all sums due to the Company.
- Delivery shall take place when the Goods are unloaded at or delivered to the Buyer's premises or other delivery location agreed between the Company and the Buyer, except that if the Buyer collects or arranges collection of the Goods from the Company's premises, or nominates a carrier for the Goods delivery shall take place when the Goods are loaded on to the collection or carrier's vehicle.
- The Company will use its best endeavours to complete delivery on or before any delivery dates requested by the Buyer or estimated by the Company, but will not be liable for any delay in delivery.
- The Buyer shall accept immediate delivery, or arrange to collect the Goods, or arrange suitable storage, failing which the Company may either:-
- effect delivery by whatever means it thinks most appropriate; or
- arrange storage at the Buyer's risk and expense pending delivery; or
- re-sell or otherwise dispose of the Goods without prejudice to any other rights the Company may have against the Buyer for breach of contract or otherwise.
- Where the agreement provides for delivery by instalments, each instalment shall constitute a separate contract and any failure or defect in any one or more instalments delivered shall not entitle the Buyer to repudiate the agreement not to cancel any subsequent instalments.
- The Buyer shall not be entitled to reject the Goods by reason of short delivery.
- The quantity of the Goods delivered under the Contract shall be recorded by the Company upon dispatch from the Company's factory or warehouse and the Company's record shall be accepted by the Buyer as conclusive evidence of the quantity delivered.
- It is the Buyer's responsibility to notify the Company if the Goods have not been received by the Buyer within seven days of the date of receipt of the Company's invoice. Therefore if no notification is made the Buyer shall be deemed to have received the Goods.
Examination and Claims
- The Buyer shall upon delivery examine the Goods and shall promptly (but in any event within seven working days of delivery) notify in writing the Company and the carrier, where relevant, of any apparent damage defect or shortage.
- The Buyer shall comply with the carriers rules regulations and requirements so as, when appropriate, to enable the Seller to make a claim against the carrier in respect of any damage or loss in transit.
- Claims in respect of damage defects or shortage not apparent on examination under (a) must be notified in writing to the Company within twenty-one days of the date of delivery.
- Notification under (a) and (c) above shall be first made by telephone then by notice in writing delivered by facsimile or by first class recorded delivery mail and addressed to: Deakin & Francis Limited, 15 Regent Place, Birmingham B1 3NL. Telephone Number: 0121-236-7751
In default of such notification the Company shall, subject to any claim which the Buyer may have under the Guarantee and Warranty referred to in Clause 9, be deemed conclusively to have properly performed its obligations under the Contract.
Guarantee and Warranty
- The Goods are subject to the guarantee ("the Guarantee"), if any, submitted by the Company which has been agreed as appropriate and fair.
- Save as referred to in (a) above the Company warrants only ("the Warranty") that the Goods are reasonably free from defects in design (other than a design submitted or specified by the Buyer) in material or workmanship for twelve months from the date of delivery ("the Warranty Period") provided that the Buyer has given the Company written notice and satisfactory proof of any defect promptly upon discovery of such defect but in no case later than seven days after expiry of the Warranty Period.
- The Company's obligations to the Buyer under the Warranty shall not apply:-
- to damage caused by the Buyer's or any third party's act, default or misuse of the Goods or by failure to follow any instructions supplied with the Goods;
- if the Goods have been stored, handled or applied in such a way that damage is likely to occur;
- if the Goods are altered, modified or repaired in any place other than the Company's factory or by persons not expressly nominated or approved in writing by the Company;
- if the Buyer shall not have paid for all Goods supplied whether under the Contract or under any other contract between the Company and the Buyer.
- Subject to (c) above the Company shall at its sole option repair or replace the Goods or refund the purchase price for the Goods found to be defective in design materials or workmanship.
- Save for liability for death or personal injury arising from the Company’s negligence. (which if proved is not excluded) The Company's obligation to repair refund or replace as aforesaid shall constitute the full extent of the Company's liability in respect of any loss or damage sustained by the Buyer, whether caused by any breach of the Contract, or by misrepresentation, or by the negligence of the Company, its employees or agents or arising from any other cause whatsoever and the Company shall not be liable for any consequential, economic, direct or indirect loss suffered by the Buyer arising therefrom.
- The cost to the Company of and incidental to the return by the Buyer to the Company of any of the Goods delivered here under shall, except to the extent that the Company has accepted responsibility here under, be the responsibility of the Buyer who shall indemnify the Company against any such costs including, but not without limitation to the generality of the foregoing, costs of transport and testing or any other cost or loss to the Company arising therefrom.
Property and Risk
- Risk shall pass to the Buyer on delivery and the Goods should be insured accordingly.
- Property (both legal and beneficial) in the Goods shall remain in the Company until all sums owing to the Company whether under the Contract or any other contract made at any time between the Company and the Buyer ("the indebtedness") shall have been paid in full. Until such time the Buyer shall hold the Goods as bailee for the Company.
- The Buyer until otherwise notified by the Company or on the happening of any of the events specified in (iv) ("the Events") may in the ordinary course of the business sell the Goods and pass property in them ("the Resale") subject to the stipulations (the Stipulations") imposed in (iii).
- The Stipulations are that until the Indebtedness has been fully discharged:-
- the Resale shall be for the account of the Company and, unless the Company by written notice requires the payment to it of the proceeds of the Resale, ("the Proceeds") to the extent of the Indebtedness, in which case the Buyer shall forthwith on receipt of such notice, or as soon thereafter as it shall receive the Proceeds make such payment, the Buyer shall retain the Proceeds in a separate bank account to the order of the Company and not mix them with any other monies;
- in the event of a breach by the Buyer of its obligations under (A) the Company shall have the right to trace the Proceeds into any other monies with which they may have been mixed, and the Buyer shall indemnify the Company on a full indemnity basis against loss, damage, costs or expenses incurred in such tracing;
- until the Resale, the Company shall have the right to repossess the Goods at any time and for this purpose shall have the right to enter on any premises or land in the ownership, or possession of the Buyer and remove the Goods and the Buyer shall indemnify the Company on a full indemnity basis against all loss, damage, costs or expenses so arising including loss, damage, costs or expenses in respect of third party claims;
- The Goods until their Resale shall be stored separately and shall be clearly marked as the Company's property.
- The Events are:-
- the giving of any notice to the Buyer that a receiver, manager, administrative receiver, administrator, supervisor or nominee is to be, or has been appointed over any of the property or assets of the Buyer, or that a petition to wind up the Buyer is to be or has been presented, or that an application for an administration order is to be, or has been made or of any notice of a resolution to wind up the Buyer (save for the purposes of a bona fide reconstruction or amalgamation);
- a decision by the Buyer that the Buyer intends to make any arrangement with its creditors generally;
- where the Buyer becomes insolvent, or appears to be unable to pay a debt, or appears to have no real prospect of being able to pay a debt pursuant to Sections 123 or 268 of the Insolvency Act 1986;
- any distress or execution is levied, or threatened to be levied on any property, or assets of the Buyer;
- the inability of the Buyer to pay its debts as they fall due.
- On receipt of notification from the Company under (ii) or on the happening of any of the Events, the Buyer's right of Resale shall cease and the Buyer shall immediately deliver the Goods, property in which is then reserved to or vested in the Company to such address as the Company shall specify in default of which, or in the alternative, the Company shall have the right to enter on any premises or land in the ownership, or possession of the Buyer and remove the Goods and the Buyer shall indemnify the Company on a full indemnity basis against all loss, damage, costs or expenses so arising including loss, damage, costs or expenses in respect of third party claims.
Breach by or Insolvency by the Buyer
If the Buyer shall not comply with any of its obligations to the Company, or upon the occurrence of any of the Events referred to in Clause 10(b)(iv), the Company shall have the right forthwith to terminate the Contract, but without affecting any other claim, right or remedy of the Company against the Buyer.
Cancellation, Suspension and Termination
- If the Buyer shall purport to cancel the whole or any part of the Contract, the Company may by notice in writing to the Buyer elect to treat the Contract as repudiated and the Buyer shall thereupon be liable to pay to the Company by way of liquidated damages, a sum equal to all the expenses incurred by the Company in connection with the Contract, including an appropriate amount in respect of administrative overheads, costs and losses of profit. The Company's reasonable estimate of the expenses incurred shall be final and binding on the parties.
- If for any cause whatsoever beyond its control the Company is unable to make any delivery on the applicable delivery date, or perform any of its obligations under the Contract, the Company may by notice in writing to the Buyer terminate the Contract or suspend the Contract without liability for any loss or damage, thereby incurred by the Buyer.
- In respect of sales of the goods outside the United Kingdom, ("Export Sales") the provisions of these Conditions shall apply unless inconsistent with the terms of this clause.
- Unless otherwise specifically agreed between the Company and the Buyer, all Export Sales shall be made C.I.F. to the Buyer's premises and the Company's prices as set out in its Price List shall be increased to cover the Company's costs in making such deliveries.
- Unless otherwise agreed in writing, payment shall be made by irrevocable letter of credit on presentation of the bills of lading.
- The Buyer warrants that if an Import Licence, or permit is required for the importation of the Goods into the country of destination, then such Import Licence or permit has been obtained or will be obtained prior to shipment.
Any samples submitted by the Company, including any samples submitted for approval by the Buyer may be charged for if not returned in good condition within twenty-eight days from the date of dispatch carriage paid.
Patents Registered Designs Trade Marks Trade Names and Copyright
The Buyer shall indemnify the Company against all damages, loss, costs, claims and expenses arising out of any infringement of any letters patent registered design trade mark trade name or copyright or any claim for such infringement, or any claim for passing-off arising out of work carried out in accordance with the Buyer's specification.
- In so far as the performance of the Contract by the Company may be affected by any strike, any lack of available shipping or transport or materials, any restriction regulation or decree by any local or municipal authority or government department or by any cause beyond the Company's reasonable control (which shall be construed without reference to the preceding causes) the Company may elect at its absolute discretion either:-
- to terminate the Contract; or
- to proceed to perform or continue performance under the Contract within a reasonable time after the termination of such events or circumstances.
- In the event that the Company makes an election under clause 16(a) the Buyer shall accept the Goods or such part of them as are delivered to it notwithstanding any delay.
Should any one or more of these Conditions be found to be or become invalid, illegal or unenforceable in any respect under any law the enforce-ability and validity of the remaining Conditions shall not in any way be affected or impaired thereby.
The Contract is and shall be deemed to have been made in England and shall in all respects be governed by English Law and shall be subject to the non-exclusive jurisdiction of the English Courts.