CONDITIONS OF SALE
The Buyer’s attention is drawn in particular to the provisions of clause 9.
1.1 In these Terms:-
“Buyer” means the person who places an Order for the Goods;
“Contract” means the contract between the Buyer and the Seller for the sale and purchase of the Goods;
“Delivery Point” means the place stated in the Order to which the Goods are to be delivered;
“Goods” means the goods (or any part of them) stated in the Order which the Seller is to supply in accordance with these Terms;
“Order” means the Buyer’s order;
“Price” means the price of the Goods set out in the Order;;
“Seller” means Woldlink Limited;
“Terms” means these standard terms of sale and includes any special terms agreed in writing between the Buyer and the Seller.
- Entire Agreement
2.1 These Terms contain the whole agreement between the parties who confirm that they have not entered into the Contract in reliance on any representations that are not expressly incorporated in these Terms. These Terms apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract.
- Basis of Sale
3.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with these Terms which are applied to all Contracts to the exclusion of all other conditions including any conditions which the Buyer may purport to apply under any purchase order confirmation or similar document.
3.2 All Orders for Goods shall be deemed to be an offer by the Buyer to purchase the Goods pursuant to these Terms.
3.3 No Order submitted by the Buyer shall be binding on the Seller unless and until accepted either in writing or otherwise by the Seller.
3.4 Any variation to these Terms (including any special conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
4.1 The Buyer shall be responsible for ensuring the accuracy of any Order and providing any necessary information within a sufficient time to enable the Seller to perform the Contract in accordance with these Terms.
4.2 The quantity, quality and description of the Goods and any specification for them shall be as set out in the Order.
4.3 If the Goods are to be manufactured or subjected to any process in accordance with a specification submitted by the Buyer, the Buyer 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 of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any person attributable to the Seller’s use of the Buyer’s specification. This clause 4.3 shall survive termination of the Contract.
4.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EU requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
4.5 No Order may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller against all loss (including loss of profit and loss of revenue and loss of business), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4.6 The Buyer shall not acquire any right or interest and shall not use or disclose any intellectual property rights incorporated in either the Order or the Goods without the prior written consent of the Seller.
- Price of the Goods
5.1 The Price is exclusive of VAT and payment of the Price shall be paid on order of the goods. The Buyer shall pay the total of the VAT inclusive invoice in full and in cleared funds by the Due Date. Time of payment is of the essence.
5.2 The Price includes the cost of packaging and delivery to the Delivery Point.
5.3 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the Price to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (including increases in taxes and duties and increases in labour, materials and other manufacturing costs) or any delay attributable to the Buyer.
5.4 The Seller may invoice the Buyer for the Price on or at any time after delivery of the Goods.
5.5 Where credit terms are agreed the repayment months will be shown and the agreed credit charges will be made.
5.6 The cost of any returnable containers or pallets shall be charged to the Buyer in addition to the Price but full credit will be given to the Buyer provided that they are returned undamaged to the Seller before the Due Date.
5.7 In the event that full payment is not received by the Seller by the Due Date, the Seller may in addition to its rights in clause 7:
5.7.1 charge interest on overdue invoices from the Due Date on a day-to-day basis until full and final payment is received in accordance with the Commercial Debts (Interest) Act 1998 together with any regulations thereunder;
5.7.2 cancel the Contract or suspend any further deliveries to the Buyer; or
5.7.3 appropriate any payment made by the Buyer to such of the Goods as the Seller may deem fit.
5.8 The Buyer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Buyer shall not be entitled to assert any credit, set-off or counterclaim against the Seller in order to justify withholding payment of any such amount in whole or in part. The Seller may at any time, without limiting any other rights or remedies it may have, set-off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
6.1 Delivery of the Goods shall be made by the Seller to the Delivery Point which if the Seller’s premises shall be effected by the Seller notifying the Buyer that the Goods are ready for collection.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods caused by a Force Majeure event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. Time for delivery shall not be of the essence of the Contract unless previously expressly agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date on giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated. The Seller shall be entitled to render its invoice for those Goods which have been so delivered.
6.4 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery, then delivery of the Goods shall be deemed to have been completed at 9.00 am on the second day after the day on which the Seller notified the Buyer that the Goods were ready and without limiting any other right or remedy available to the Seller, the Seller may:-
6.4.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage plus 1% of net invoice value until delivery; or
6.4.2 sell the Goods at the best price readily obtainable and after deducting all reasonable storage and selling expenses account to the Buyer for the excess over the Price under the Contract or charge the Buyer for any shortfall below the Price under the Contract.
6.4.3 [invoice all outstanding tonnage Ordered by the Buyer and not delivered, for payment by the Due Date together with an immediate stocking charge of 3% of net invoice value]
- Property and Risk
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer on delivery.
7.2 Property and title in the Goods shall, notwithstanding delivery, remain with the Seller until all sums due and owing by the Buyer to the Seller on any account have been paid and received by the Seller in cash or cleared funds under this and all other contracts between the Seller and the Buyer for which payment thereunder has not been paid.
7.3 Pending the transfer of the property in the Goods:-
7.3.1 the Buyer shall hold the Goods as the Seller’s bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected, insured and identified as the Seller’s property and maintain the Goods in satisfactory condition; and
7.3.2 the Seller may without limiting any other right or remedy it may have at any time require the Buyer to deliver up the Goods to the Seller and in default the Buyer hereby grants the Seller a licence to enter upon any premises of the Buyer and of any third party where the Goods are stored and repossess the Goods.
7.4 All payments shall be applied to and deemed to be made in respect of invoices in the order in which they were issued and to Goods in the order in which they are listed in invoices.
7.5 The Buyer shall not sell or dispose of any Goods (or documents of title thereto, or any interest therein), except to its customers in the ordinary course of its business and as fiduciary agent for the Seller, and if the Buyer sells or disposes of any Goods, the Buyer shall hold on trust for the Seller and pay to the Seller the full proceeds of sale forthwith upon demand by the Seller.
7.6 The Buyer shall not:-
7.6.1 Pledge any Goods or documents of title thereto or allow any lien to arise thereon; or
7.6.2 Use or process any Goods other than in the ordinary course of the Buyer’s business.
7.7.1 Payment for any Goods is overdue in whole or in part; or
7.7.2 The Buyer becomes insolvent or bankrupt, or enters into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or passes a resolution for winding up or has a receiver, administrative receiver or manager appointed, or enters into any composition or arrangement with its creditors or suffers any similar action in consequence of debt; or
7.7.3 In the opinion of the Seller the Buyer is or is likely to become unable to pay its debts, or the financial stability of the Buyer is otherwise unsatisfactory;
then the Seller shall be entitled to the immediate return of all the Goods sold by the Seller to the Buyer in which property has not passed to the Buyer and the Buyer hereby authorises the Seller to recover such Goods and hereby grants to the Seller an irrevocable licence to enter any premises of or under the control of the Buyer for that purpose. Such authorisation and licence shall be unaffected by the appointment of any receiver, manager, administrator or liquidator in relation to the Buyer. Demand for or recovery of any Goods by the Seller shall not of itself discharge either the Buyer’s liability to pay the Price and take delivery of such Goods or of the Seller’s right to issue proceedings for any sums due.
8.1 The Buyer shall inspect the Goods on delivery and unless the Seller is notified within seven working days of delivery that the Goods are not in accordance with the Contract or are defective, they shall be deemed to be free from any defect which would be apparent on reasonable examination and to have been accepted by the Buyer and shall be deemed to comply with the Order. The Buyer shall not be entitled to reject the Goods after the period of 7 days.
8.2 The Seller will replace free of charge any Goods shown by the Buyer to be defective or where capable of sale at a reduced price, may agree an appropriate allowance.
8.3 In the event of non-delivery of all or part of the Goods, the Buyer must give notice thereof to the Seller within seven days of receipt by the Buyer of notice from the Seller that the Goods have been despatched. If the Buyer shall fail to give such notice the Seller shall be under no liability to the Buyer in respect of such non-delivery.
8.4 Where any complaint concerning the quality or performance of the Goods is received by the Buyer which the Buyer believes may result in some liability on the part of the Seller the Buyer shall notify the Seller as soon as possible and in any event within 7 days of the claim or relevant facts becoming apparent to the Buyer.
8.5 If the Buyer sells on any of the Goods (as agent or otherwise) the Buyer shall impose on the customer obligations equivalent to those contained in this clause 8.
9 Warranties and Limitation of Liability
9.1 Subject to the following provisions the Seller warrants that the Goods will correspond with the Order.
9.2 The Seller shall be under no liability under the above warranty:-
9.2.1 in respect of any defect or lack of fitness in the Goods arising from any specification supplied by the Buyer or arising from the manner in which the Goods are used or applied or incorporated into other Goods by the Buyer or a third party;
9.2.2 in respect of any defects arising from fair wear and tear, wilful damage, negligence, abnormal working or storage conditions, failure to follow the Seller’s instructions whether oral or in writing, misuse or alteration of the Goods without the Seller’s approval;
9.2.3 if the total Price for the Goods has not been paid by the Due Date; or
9.2.4 in respect of goods not manufactured by the Seller in which case the Buyer shall only be entitled to the benefit of any such warranty as is given by the manufacturer to the Seller.
9.3 The Goods must be used, handled, stored, mixed or applied only in strict accordance with the Seller’s instructions and recommendations.
9.4 Subject as expressly provided in these Terms, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions, or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.5 Where a valid claim is made under the above warranty, the Seller may, at its discretion, either replace the Goods or refund to the Buyer the Price of the Goods, in which case the Seller shall have no further liability to the Buyer.
9.6 Except in respect of death or personal injury caused by the Seller’s negligence or liability for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract whether in contract, tort, breach of statutory duty or otherwise, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (including any losses that may result from the Seller’s deliberate repudiatory breach of the Contract) or whether caused by the negligence of the Seller, its employees or agents or otherwise which arise out of or in connection with the supply of the Goods including any delay in supplying or failure to supply the Goods in accordance with the Contract or at all or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the Price in respect of the Goods the subject of the claim.
9.7 If the Buyer sells on the Goods it shall do so on terms which include the limitations of liability set out in this clause 9.
9.8 The Buyer agrees to fully indemnify the Seller and keep the Seller fully indemnified against all losses, costs, claims, demands, expenses and actions which the Seller may suffer or incur as the result of the Buyer’s breach of any of the terms of this Contract or as the result of any resale of the Goods to any third party.
10 Intellectual Property Rights
10.1 The supply of the Goods by the Seller shall not confer any right upon the Buyer to use or acquire any Intellectual Property Rights of the Seller and the Buyer warrants that it shall not use any Intellectual Property of the Seller without the Seller’s written consent.
11 Force Majeure
11.1 Neither party shall be liable for any delay or defect due to any act of God, war, strike, lock-out, industrial action, fire, flood, drought, tempest, breakdown of plant and machinery, adverse weather conditions or shortage of supplies for manufacture, or other event beyond the reasonable control of either party.
11.2 If any obligation under this agreement cannot be performed for a continuing period of 3 month as a result of one or more of the events described in 11.1 then either party may terminate the agreement by notice in writing at the end of this period.
12.1 Any disputes which may arise between the parties concerning the Contract shall be referred to a single arbitrator to be agreed upon by the parties or in default of agreement to be nominated by the President for the time being of the Chartered Institute of Arbitrators for determination in accordance with the Arbitration Act 1996.
13.1 The Seller may terminate this agreement at any time (without reason) and without further obligation to the Buyer by 7 days’ notice in writing. The Seller may terminate this agreement forthwith at any time and without further obligation to the Buyer if the Buyer becomes insolvent or an order is made or a resolution passed for the winding up of the Buyer (other than for the purpose of a solvent amalgamation or reconstruction) or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of its assets or if the Buyer commits any breach of any of the terms of this Agreement.
14.1 The Buyer may not assign any of its rights or obligations under the Contract without the prior written consent of the Seller.
14.2 The Buyer will at all times keep confidential all information acquired in consequence of or pursuant to this Contract save as may be required by law or where such information is in the public domain other than due to the Buyer’s breach.
14.3 A notice to be given by either party to the other under these Terms shall be in writing addressed to that other party at its registered office or principal place of business.
14.4 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.5 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
14.6 The Buyer acknowledges and by submitting an Order consents to the processing and disclosure by the Seller of personal or financial data relating to the Buyer relevant to any credit which may from time to time be afforded by the Seller to credit reference agencies, banks and credit insurers and that such organisations may process the data provided or relevant to any other matter which the Seller considers reasonable including, without limitation, any commercial relationship which the Seller has with any third party.
14.7 For the purposes of the Contracts (Rights of Third Parties) Act 1999, this agreement is not intended to and does not give any person who is not a party to it any right to enforce anyof its provisions.
14.8 This agreement shall be governed by and construed in accordance with the law of England and Wales and each party agrees to submit to the jurisdiction of the courts of England and Wales.
C/o Woldmarsh Producers Limited
Registered in England No. 8695669