Conditions of Business
1
Interpretation
1.1 In these
Conditions the following words have the following meanings: ‘Buyer’ the person(s), firm or company
who purchases the Goods from the Company; ‘Company’ GAZZ-MATIC INTERNATIONAL LIMITED (Company No 4071528) whose registered office
is at Ravridge House, Swinbourne Road, Burnt Mills Industrial Estate, Basildon,
Essex SS13 1EH; ‘Contract’ any
contract between the Company and the Buyer for the sale and purchase of the
Goods, incorporating these Conditions; ‘Delivery
Point’ the place where delivery of the Goods is to take place under
condition 4; and ‘Goods’ any goods
agreed in the Contract to be supplied to the Buyer by the Company (including
any part or parts of them). 1.2 In
these Conditions references to any statute or statutory provision shall, unless
the context otherwise requires, be construed as a reference to that statute or
statutory provision as from time to time amended, consolidated, modified,
extended, re-enacted or replaced. 1.3 In these Conditions references to the masculine include the feminine and the
neuter and to the singular include the plural and vice versa as the context
admits or requires. 1.4 In these
Conditions headings will not affect the construction of these Conditions.
2
Application of terms
2.1 Subject to any
variation under condition 2.3 the Contract will be on these Conditions to the
exclusion of all other terms and conditions (including any terms or conditions
which the Buyer purports to apply under any purchase order, specification or
other document).
2.2 No terms or
conditions endorsed upon, delivered with or contained in the Buyer’s purchase
order, specification or other document will form part of the Contract simply as
a result of such document being referred to in the Contract.
2.3 These Conditions
apply to all the Company’s sales and any variation to these Conditions and any
representations about the Goods shall have no effect unless expressly agreed in
writing and signed by a director of the Company. The Buyer acknowledges that it
has not relied on any statement, promise or representation made or given by or
on behalf of the Company which is not set out in the Contract. Nothing in this
Condition will exclude or limit the Company’s liability for fraudulent
misrepresentation.
2.4 Each order or
acceptance of a quotation for Goods by the Buyer from the Company shall be
deemed to be an offer by the Buyer to purchase Goods subject to these
Conditions.
2.5 No order placed
by the Buyer shall be deemed to be accepted by the Company until a written
confirmation of order is issued by the Company or (if earlier) the Company
delivers the Goods to the Buyer.
2.6 The Buyer must
ensure that the terms of its order and any applicable specification are
complete and accurate.
2.7 Any quotation is
given on the basis that no contract will come into existence until the Company
despatches a written confirmation of order to the Buyer. Any quotation is valid
for a period of 30 days only from its date, provided that the Company has not
previously withdrawn it.
3
Description
3.1 The quantity and
description of the Goods shall be as set out in the Company’s quotation or
confirmation of order. 3.2 All
samples, drawings, descriptive matter, specifications and advertising issued by
the Company and any descriptions or illustrations contained in the Company’s
catalogues or brochures are issued or published for the sole purpose of giving
an approximate idea of the goods described in them. They will not form part of
this Contract and this is not a sale by sample.
4
Delivery
4.1 Unless otherwise
agreed in writing by the Company, delivery of the Goods shall take place at the
Company’s place of business.
4.2 The Buyer will
take delivery of the Goods within 7 days of the Company giving it notice that
the Goods are ready for delivery.
4.3 Any dates
specified by the Company for delivery of the Goods are intended to be an
estimate and time for delivery shall not be made of the essence by notice. If
no dates are so specified, delivery will be within a reasonable time.
4.4 Subject to the
other provisions of these Conditions, the Company will not be liable for any
direct, indirect or consequential loss (all three of which terms include,
without limitation, pure economic loss, loss of profits, loss of business,
depletion of goodwill and like loss), costs, damages, charges or expenses
caused directly or indirectly by any delay in the delivery of the Goods (even
if caused by the Company’s negligence), nor will any delay entitle the Buyer to
terminate or rescind the Contract unless such delay exceeds 90 days.
4.5 If for any reason
the Buyer will not accept delivery of any of the Goods when they are ready for
delivery, or the Company is unable to deliver the Goods on time because the
Buyer has not provided appropriate instructions, documents, licences or
authorisations: 4.5.1 risk in the
Goods will pass to the Buyer (including for loss or damage caused by the
Company’s negligence); 4.5.2 the
Goods will be deemed to have been delivered; and 4.5.3 the Company may store the Goods until delivery whereupon the
Buyer will be liable for all related costs and expenses (including, without
limitation, storage and insurance).
4.6 The Buyer will
provide at its expense at the Delivery Point adequate and appropriate equipment
and manual labour for loading the Goods.
4.7 If the Company
delivers to the Buyer a quantity of Goods of up to 10% more or less than the
quantity accepted by the Company the Buyer shall not be entitled to object to
or reject the Goods or any of them by reason of the surplus or shortfall and
shall pay for such goods at the pro rata Contract rate.
4.8 The Company may
deliver the Goods by separate instalments. Each separate instalment will be
invoiced and paid for in accordance with the provisions of the Contract.
4.9 Each instalment
will be a separate Contract and no cancellation or termination of any one
Contract relating to an instalment will entitle the Buyer to repudiate or
cancel any other Contract or instalment.
5
Non-delivery
5.1 The quantity of
any consignment of Goods as recorded by the Company upon despatch from the
Company’s place of business shall be conclusive evidence of the quantity
received by the Buyer on delivery unless the Buyer can provide conclusive
evidence proving the contrary.
5.2 The Company shall
not be liable for any non-delivery of Goods (even if caused by the Company’s
negligence) unless written notice is given to the Company within 2 days of the
date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of
the Company for non-delivery of the Goods shall be limited to replacing the
Goods within a reasonable time or issuing a credit note at the pro rata
Contract rate against any invoice raised for such Goods.
6
Risk/title
6.1 The Goods are at
the risk of the Buyer from the time of delivery.
6.2 Ownership of the
Goods shall not pass to the Buyer until the Company has received in full (in
cash or cleared funds) all sums due to it in respect of: 6.2.1 the Goods; and 6.2.2 all other sums which are or which become due to the Company from the Buyer on
any account.
6.3 Until ownership
of the Goods has passed to the Buyer, the Buyer must: 6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee; 6.3.2 store the Goods (at no cost to
the Company) separately from all other goods of the Buyer or any third party in
such a way that they remain readily identifiable as the Company’s property; 6.3.3 not destroy, deface or obscure
any identifying mark or packaging on or relating to the Goods; and 6.3.4 maintain the Goods in satisfactory
condition and keep them insured on the Company’s behalf for their full price
against all risks to the reasonable satisfaction of the Company. On request the
Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer may
resell the Goods before ownership has passed to it solely on the following
conditions: 6.4.1 any sale shall be
effected in the ordinary course of the Buyer’s business at full market value;
and 6.4.2 any such sale shall be a
sale of the Company’s property on the Buyer’s own behalf and the Buyer shall
deal as principal when making such a sale.
6.5 The Buyer’s right
to possession of the Goods shall terminate immediately if: 6.5.1 the Buyer has a bankruptcy order made against him or makes an
arrangement or composition with his creditors, or otherwise takes the benefit
of any statutory provision for the time being in force for the relief of
insolvent debtors, or (being a body corporate) convenes a meeting of creditors
(whether formal or informal), or enters into liquidation (whether voluntary or
compulsory) except a solvent voluntary liquidation for the purpose only of
reconstruction or amalgamation, or has a receiver and/or manager, administrator
or administrative receiver appointed of its undertaking or any part thereof, or
documents are filed with the court for the appointment of an administrator of
the Buyer or notice of intention to appoint an administrator is given by the
Buyer or its directors or by a qualifying floating charge holder (as defined in
paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is
passed or a petition presented to any court for the winding up of the Buyer or
for the granting of an administration order in respect of the Buyer, or any
proceedings are commenced relating to the insolvency or possible insolvency of
the Buyer; 6.5.2 the Buyer suffers
or allows any execution, whether legal or equitable, to be levied on his/its
property or obtained against him/it, or fails to observe/perform any of his/its
obligations under the Contract or any other contract between the Company and
the Buyer, or is unable to pay its debts within the meaning of section 123 of
the Insolvency Act 1986 or the Buyer ceases to trade; or 6.5.3 the Buyer encumbers or in any way charges any of the Goods.
6.6 The Company shall
be entitled to recover payment for the Goods notwithstanding that ownership of
any of the Goods has not passed from the Company.
6.7 The Buyer grants
the Company, its agents and employees an irrevocable licence at any time to
enter any premises where the Goods are or may be stored in order to inspect
them, or where the Buyer’s right to possession has terminated, to recover them.
6.8 Where the Company
is unable to determine whether any Goods are the goods in respect of which the
Buyer’s right to possession has terminated, the Buyer will be deemed to have
sold all goods of the kind sold by the Company to the Buyer in the order in
which they were invoiced to the Buyer.
6.9 On termination of
the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights
contained in this condition 6 will remain in effect.
7
Price
7.1 Unless otherwise
agreed by the Company in writing, the price for the Goods shall be the price
set out in the Company’s price list published on the date of delivery or deemed
delivery.
7.2 The price for the
Goods shall be exclusive of any value added tax and all costs or charges in
relation to packaging, loading, unloading, carriage and insurance all of which
amounts the Buyer will pay in addition when it is due to pay for the Goods.
8
Payment
8.1 Subject to
condition 8.4, unless otherwise agreed by the Company in writing payment of the
price for the Goods is due in pounds sterling on the last working day of the
month following the month in which the Goods are delivered or deemed to be
delivered.
8.2 Time for payment
shall be of the essence.
8.3 No payment shall
be deemed to have been received until the Company has received cleared funds.
8.4 All payments
payable to the Company under the Contract shall become due immediately upon
termination of this Contract despite any other provision.
8.5 The Buyer shall
make all payments due under the Contract in full without any deduction whether
by way of set-off, counterclaim, discount, abatement or otherwise unless the
Buyer has a valid court order requiring an amount equal to such deduction to be
paid by the Company to the Buyer.
8.6 If the Buyer
fails to pay the Company any sum due pursuant to the Contract the Buyer will be
liable to pay interest to the Company on such sum from the due date for payment
at the annual rate of 5% above the base lending rate from time to time of
Barclays Bank Plc, accruing on a daily basis until payment is made, whether
before or after any judgment. The Company reserves the right to claim interest
under the Late Payment of Commercial Debts (Interest) Act 1998.
9
Quality
9.1 The Company
warrants that (subject to the other provisions of these Conditions) upon
delivery the Goods will be of satisfactory quality within the meaning of the
Sale of Goods Act 1979.
9.2 The Company shall
not be liable for a breach of the warranty in condition 9.1 unless: 9.2.1 the Buyer gives written notice of
the defect to the Company, and (if the defect is as a result of damage in
transit) to the carrier, within 2 days of the time when the Buyer discovers or
ought to have discovered the defect; and 9.2.2 the Company is given a reasonable opportunity after receiving the notice of
examining such Goods and the Buyer (if asked to do so by the Company) returns
such Goods to the Company’s place of business at the Buyer’s cost for the
examination to take place there.
9.3 The Company shall
not be liable for a breach of the warranty in condition 9.1 if: 9.3.1 the Buyer makes any further use
of such Goods after giving such notice; 9.3.2 the defect arises because the Buyer failed to follow the Company’s oral or
written instructions as to the storage, installation, commissioning, use or
maintenance of the Goods or (if there are none) good trade practice; or 9.3.3 the Buyer alters or repairs such
Goods without the written consent of the Company.
9.4 Subject to
conditions 9.2 and 9.3, if any of the Goods do not conform with the warranty in
condition 9.1 the Company shall at its option repair or replace such Goods (or
the defective part) or refund the price of such Goods at the pro rata Contract
rate provided that, if the Company so requests, the Buyer shall, at the
Company’s expense, return the Goods or the part of such Goods which is
defective to the Company.
9.5 If the Company
complies with condition 9.4 it shall have no further liability for a breach of
the warranty in condition 9.1 in respect of such Goods.
9.6 Any Goods
replaced will belong to the Company.
10
Limitation of liability
10.1 Subject to
conditions 4, 5 and 9, the following provisions set out the entire financial
liability of the Company (including any liability for the acts or omissions of
its employees, agents and sub-contractors) to the Buyer in respect of: 10.1.1 any breach of these Conditions; 10.1.2 any use made or resale by the
Buyer of any of the Goods, or of any product incorporating any of the Goods;
and 10.1.3 any representation,
statement or tortious act or omission including negligence arising under or in
connection with the Contract.
10.2 All warranties,
conditions and other terms implied by statute or common law (save for the
conditions implied by section 12 of the Sale of Goods Act 1979) are, to the
fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these
Conditions excludes or limits the liability of the Company: 10.3.1 for death or personal injury
caused by the Company’s negligence; 10.3.2 under section 2(3) Consumer Protection Act 1987; 10.3.3 for any matter which it would be illegal for the company to
exclude or attempt to exclude its liability; or 10.3.4 for fraud or fraudulent misrepresentation.
10.4 Subject to
conditions 10.2 and 10.3: 10.4.1 the
Company’s total liability in contract, tort (including negligence or breach of
statutory duty), misrepresentation, restitution or otherwise arising in
connection with the performance or contemplated performance of this Contract
shall be limited to the Contract price; and 10.4.2 the Company shall not be liable to the Buyer for any pure
economic loss, loss of profit, loss of business, depletion of goodwill or
otherwise, in each case whether direct, indirect or consequential, or any
claims for consequential compensation whatsoever (howsoever caused) which arise
out of or in connection with the Contract.
11
Assignment
11.1 The Buyer shall
not be entitled to assign the Contract or any part of it without the prior
written consent of the Company. 11.2 The Company may assign the Contract or any part of it to any person, firm or
company.
12
Force majeure
The Company reserves the
right to defer the date of delivery or to cancel the Contract or reduce the
volume of the Goods ordered by the Buyer (without liability to the Buyer) if it
is prevented from or delayed in the carrying on of its business due to
circumstances beyond the reasonable control of the Company including, without
limitation, acts of God, governmental actions, war or national emergency, acts
of terrorism, protests, riot, civil commotion, fire, explosion, flood, tsunami,
epidemic, lock-outs, strikes or other labour disputes (whether or not relating to
either party’s workforce), or restraints or delays affecting carriers or
inability or delay in obtaining supplies of adequate or suitable materials
provided that, if the event in question continues for a continuous period in
excess of 90 days, the Buyer shall be entitled to give notice in writing to the
Company to terminate the Contract.
13
General
13.1 Each right or
remedy of the Company under the Contract is without prejudice to any other
right or remedy of the Company whether under the Contract or not. 13.2 If any provision of the Contract
is found by any court, tribunal or administrative body of competent
jurisdiction to be wholly or partly illegal, invalid, void, voidable,
unenforceable or unreasonable it shall to the extent of such illegality, invalidity,
voidness, voidability, unenforceability or unreasonableness be deemed severable
and the remaining provisions of the Contract and the remainder of such
provision shall continue in full force and effect. 13.3 Failure or delay by the Company in enforcing or partially
enforcing any provision of the Contract will not be construed as a waiver of
any of its rights under the Contract. 13.4 Any waiver by the Company of any breach of, or any default under, any provision
of the Contract by the Buyer will not be deemed a waiver of any subsequent
breach or default and will in no way affect the other terms of the Contract. 13.5 The parties to this Contract do
not intend that any term of this Contract will be enforceable by virtue of the
Contracts (Rights of Third Parties) Act 1999 by any person that is not a party
to it. 13.6 The formation,
existence, construction, performance, validity and all aspects of the Contract
shall be governed by English law and the parties submit to the exclusive
jurisdiction of the English courts.
14
Communications
14.1 All
communications between the parties about this Contract must be in writing and
delivered by hand or sent by pre-paid first class post or sent by facsimile
transmission: 14.1.1 (in case of
communications to the Company) to its registered office or such changed address
as shall be notified to the Buyer by the Company; or 14.1.2 (in the case of the communications to the Buyer) to the
registered office of the addressee (if it is a company) or (in any other case)
to any address of the Buyer set out in any document which forms part of this
Contract or such other address as shall be notified to the Company by the
Buyer. 14.2 Communications shall be
deemed to have been received: 14.2.1 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and
bank and public holidays) after posting (exclusive of the day of posting); 14.2.2 if delivered by hand, on the day
of delivery; or 14.2.3 if sent by
facsimile transmission on a working day prior to 4.00 pm, at the time of transmission
and otherwise on the next working day.
IF
THE BUYER IS A CONSUMER THE BUYER’S STATUTORY RIGHTS ARE NOT AFFECTED
Click here to Download the PDF |
