SIGNO NANOCARE UK LTD – TERMS & CONDITIONS OF SALE
- General
1.1 In these Conditions:
1.1.1 the following expressions shall have the following meanings:
“Buyer” the individual firm company or other party from whom an Order to Supply Goods and/or provide Services is received by the Seller
“Conditions” the standard terms and conditions of sale of the Seller as set out herein and includes any additional terms and conditions of sale agreed in Writing by the Seller
“Contract” a contract for the Supply of Goods and/or provision of Services by the Seller to the Buyer whether made verbally or in Writing
“Date of Delivery” the date on which delivery of the Goods or Services takes place pursuant to Condition 6 “Goods” the goods which the Seller is to supply under the Contract and includes any of them or any part of them and where the context so admits includes raw materials and/or processed materials whether processed by the Seller or not
“Order” an order placed by the Buyer for the Supply of Goods and/or provision of Services whether verbally or in Writing
“Prepayment” a payment to be made by the Buyer pursuant to Condition 5.3 to be used at the Seller’s discretion for the purchase of materials and/or towards the costs of labour and other costs relating to the supply of Goods and/or Services
“Recommendations for Use” the recommendations (if any) relating to the storage, handling, application and/or use of the Goods contained in the published literature of the Seller or any recommendations made in Writing by an authorised representative of the Seller
“Seller” Signo Nanocare UK Limited (Company Number 07673104) and any subsidiary or holding company or associate (as such terms are defined in the Companies Act 1985 (as amended)) of the said company and also, where the context so permits, any sub-contractor of the said company or of any subsidiary or holding company or associate (as aforesaid) of the said company
“Services” the work or services or any of them to be provided by the Seller under the Contract “Supply” includes, where the context so admits, lease, hire or loan of the Goods and “supplied” shall be construed accordingly
“Writing” includes facsimile transmission, e-mail and comparable means of communication
1.1.2 words importing the singular number shall include the plural and vice versa, words importing one gender shall include all genders, and words importing persons shall include bodies corporate, unincorporated associations and partnerships
1.2 The Seller reserves the right where there has been no previous course of dealings with the Buyer to insist that the Buyer notifies it in Writing of the full name and address of the Buyer and all its branches and where the Buyer is a limited company the full names and addresses of all its directors and the names and addresses of three persons firms or companies with whom the Buyer has had trade dealings and the names and addresses of the Buyer’s bankers and accountants or auditors (as applicable) together with authority in Writing for the Seller to contact all of the same for appropriate If the information is not provided within seven days of a request therefor by the Seller or if, following the provision of such information, the Seller is unable to obtain satisfactory trade indemnity or similar cover in respect of its dealings with the Buyer, the Seller may terminate the Contract and the rights and liabilities of the parties shall be the same as if the Contract had been cancelled in accordance with the provisions of Condition 9.2
1.3 In relation to all obligations of the Buyer under these conditions, the time of performance is of the essence
2. ORDERS, ACKNOWLEDGEMENTS, CONDITIONS AND VARIATIONS
2.1 Notwithstanding that the Seller may have given a detailed quotation or estimate either verbally or in Writing no Order shall be binding on the Seller unless and until it has been acknowledged in Writing by the Seller or the Goods are delivered or the Services are provided by the Seller to the Buyer pursuant to the Order. Any quotation given is, in any event, only valid for 30 days from the date on which it is given to the Buyer
2.2 These Conditions are incorporated in the Contract and contain the entire obligations between the Seller and the In the case of any inconsistency between any letter or quotation incorporating or referring to these Conditions and any Order, letter or form of contract sent by the Buyer to the Seller, whatever may be their respective dates, the provisions of these Conditions shall prevail. In the event of the Seller entering into the Contract without the Seller having submitted a written quotation or other letter or document incorporating or referring to these Conditions but in circumstances where the Buyer has had prior notice of these Conditions then all Goods supplied and/or Services provided shall be subject to these Conditions
2.3 No variation of the Contract by the Buyer shall be binding upon the Seller unless made in Writing and signed on behalf of the In the event of such variation the Buyer shall indemnify and keep indemnified the Seller in full against all loss, which term shall include (but without prejudice to the generality thereof) loss of profit, costs (including the cost of labour and materials), damages, charges and expenses incurred (directly or indirectly) by the Seller as a result of such variation
2.4 Any representations (except fraudulent misrepresentations) or warranties made by or on behalf of the Seller prior to the Contract (whether verbally or in Writing) are hereby expressly excluded and shall be of no effect
3. DESCRIPTION
3.1 Any figures, statements, descriptions, illustrations, photographs, drawings, weights or any other matters contained in the Seller’s catalogues, pamphlets, price lists or advertising literature are not guaranteed to be accurate and are intended merely to represent a general picture of the Seller’s products and services and shall not form part of the Contract nor be regarded as a warranty or representation relating to the Goods or Services
3.2 The Seller reserves the right to amend the specification of its products and services from time to time so that the descriptions thereof as set out in its catalogues pamphlets price lists or advertising literature may not be identical with those set out in the Seller’s quotation and the Buyer is advised to check the specification set out in the Seller’s quotation before placing its Order
3.3 To enable the Seller to pursue its policy of continuous improvement of its products the Seller shall be entitled to make any alterations which it considers to be reasonable in the specification of materials designs or dimensions as set out in the quotation or acknowledgement of Order form whether before or after the making of the Contract
4. DESIGNS, BUYER’S PROPERTY AND INTELLECTUAL PROPERTY
4.1 The Buyer acknowledges that the Seller shall be under no liability of any description to the Buyer if the Goods prove to be unsuitable for whatever reason for application or use notwithstanding that the Seller may, at the request of the Buyer, have given in good faith technical or other advice in relation to the proposed application or use of the Goods and the Buyer shall indemnify and keep indemnified the Seller in full against any and all liability of any kind arising out of or connected with the application or use of the Goods in accordance with the Buyer’s specification, pattern or design or otherwise
4.2 In the event of any goods or materials or other property being supplied by or on behalf of the Buyer to the Seller for carrying out the Contract either at the Seller’s premises or elsewhere such items shall remain at the Buyer’s risk at all times whilst they are in the Seller’s premises or in transit to and from its premises or otherwise under its The Seller, its servants and agents will not be responsible for any loss thereof or damage thereto unless such damage or loss is due directly to the negligence of the Seller, its servants or agents and in any event the Seller’s liability therefor shall be limited at the option of the Seller to the replacement or repair thereof or the payment to the Buyer of the open market value thereof. Under no circumstances whatsoever will the Seller be liable for any consequential loss or damage arising therefrom. The Buyer is advised to insure all such property for all risks
4.3 The Buyer shall indemnify and keep the Seller indemnified in full against any loss, damage or expense which the Seller may incur arising directly or indirectly as a result of any defects in such goods or materials or other property supplied by the Buyer pursuant to Condition 2
5. PRICE
5.1 The Seller shall be entitled to adjust the Contract price of the Goods and/or Services whether before or after the making of the Contract in the event of any variation in the cost to the Seller of supplying the same or any part thereof caused by:
5.1.1 any increase in the cost of materials or services required by the Seller for the completion of the Contract or
5.1.2 any other reason whatsoever beyond the control of the Seller including (but without prejudice to the generality of the foregoing) fluctuations in exchange rates between monetary currencies the action of any government or any other authority or any labour problems
5.2 The price set out in the Seller’s quotation does not include Value Added Tax which will be charged at the rate applicable at the date of invoice
5.3 In the Seller’s absolute discretion, a Prepayment in respect of the Contract may be required to be paid by the Buyer to the Seller on the terms set out in this The Prepayment shall be applied as follows:
5.3.1 in the event that the Contract is performed in full by both parties the Prepayment shall be retained by the Seller in reduction of the total price payable by the Buyer under the Contract
5.3.2 in the event that the Buyer is either in default of any of its obligations under the Contract or cancels or suspends the contract in accordance with Condition 9 the Prepayment shall be set off by the Seller against its proper costs losses or damages arising in connection with the default and/or cancellation or suspension
5.4 Unless otherwise stated, the price set out in the Seller’s quotation does not include the cost of Where packaging is included, unless otherwise agreed, it will be to the Seller’s standard specification which should be adequate for the normal incidence of competent handling, covered transport and short term indoor storage in a temperate climate. If additional protection is required, the Buyer must specify this before the Contract is made
5.5 Unless otherwise agreed in Writing, the price does not include the cost of carriage to the contracted place of delivery nor the cost of off-loading the Goods nor the cost of installation of the Goods which should be arranged by the Buyer at its sole risk and The Seller will endeavour to expedite delivery if requested so to do by the Buyer who must specify in Writing the means of transport to be used but the Buyer shall reimburse the Seller for all additional costs the Seller incurs thereby. The Buyer also agrees to pay for any loss or extra cost incurred by the Seller through the Buyer’s faulty instructions, lack of instructions or any failure or delay of the Buyer in taking delivery or any act or default on the part of the Buyer, its servants, agents or employees
6. DELIVERY
6.1 Delivery of Goods shall be deemed to be effected by the Seller at the following times:
6.1.1 where Goods are delivered by the Seller, when the same arrive prior to unloading at the Buyer’s premises or at premises nominated by the Buyer or at the nearest accessible road point to such premises
6.1.2 where Goods are delivered by an independent carrier, at the time of loading onto the carrier’s vehicle
6.1.3 where Goods are collected by or on behalf of the Buyer by its servants or agents, when the same are collected
6.2 Delivery of Services shall be deemed to be effected by the Seller at the time of completion by the Seller of the Services
6.3 Whilst the Seller will make every reasonable effort to complete the Contract by the date or dates therein specified for delivery of Goods and/or provision of Services such date or dates shall only constitute the times by which the Seller expects to effect such delivery and if no time is agreed delivery and/or provision will be within a reasonable time but the time for performance of the Contract by the Seller shall not be of the essence of the Contract, the Seller’s failure to so deliver and/or provide by the due date or dates shall not constitute a breach of Contract and the Seller shall not in any circumstances be responsible for any direct or consequential loss or damage of any kind whatsoever resulting therefrom. The Seller may wholly or partly suspend deliveries of Goods and/or provision of Services and the Buyer shall accept late delivery of such Goods and/or provision of Services unless the Buyer has cancelled the Contract in accordance with the provisions of Condition 9.3
6.4 Neither of the parties shall be responsible to the other for any delay in performance or non-performance due to any causes beyond the reasonable control of the parties, but the affected party shall promptly upon the occurrence of any such cause so inform the other party in Writing, stating that such cause has delayed or prevented its performance under the Contract and thereafter such party shall take all action within its power to comply with the terms of the Contract as fully and promptly as possible
7. QUANTITIES INSTALMENTS AND STORAGE
7.1 Where Goods are delivered and/or Services are provided by instalments each instalment shall be deemed to be sold under a separate Contract and the party in default in respect of any instalment shall be liable accordingly, but no default in respect of any one instalment shall affect due performance of the Contract as regards other instalments
7.2 The Seller will endeavour to deliver the quantity of Goods ordered and every delivery shall be deemed to comply with the Order. If there is a surplus or shortage of Goods which is so slight that it would be unreasonable for the Buyer to reject delivery of them the Buyer shall be deemed to have accepted the Goods and shall pay for the actual quantity delivered
7.3 If Goods and/or Services are to be delivered and/or provided by instalments, the Seller shall be entitled to invoice each instalment as and when delivery and/or provision is made and payment for all delivered and/or provided instalments shall be due notwithstanding the non-delivery and/or non-provision of other instalments or other default by the Failure by the Buyer to make payment by the due date for any one instalment for whatever reason shall entitle the Seller to suspend deliveries of Goods and/or provision of Services under the Contract but without prejudice to any other right the Seller may have under any of the other provisions of these Conditions
7.4 Notwithstanding that risk shall have passed to the Buyer pursuant to Condition 16 the Seller may in its absolute discretion arrange for storage of the Goods either at the request of the Buyer or as a result of the failure by the Buyer to take delivery of the Goods under Condition The Seller may insure the goods whilst in storage and the Buyer shall indemnify and keep indemnified the Seller in full against all costs, losses, damages and expenses whatsoever arising in connection with the storage provided for hereunder and such costs, losses, damages and expenses will be added to and form part of the price of the Goods
7.5 Unless otherwise agreed between the Buyer and the Seller, the Seller shall be entitled in its absolute discretion and without giving prior notice to the Buyer at the expiration of 3 months to sell or otherwise dispose of Goods kept in storage as provided in Condition 4
8. TERMS OF PAYMENT
8.1 Unless otherwise agreed the price shall be due and payable at the Seller’s offices by one of the following means:
8.1.1 in sterling 30 days after the Date of Delivery or
8.1.2 if earlier, in sterling 30 days after the Buyer is sent a notification that the Goods are in a deliverable state and/or that the Seller is ready, willing and able to provide the Services or
8.1.3 by such other means as shall be agreed in Writing by the Seller
However, the Seller reserves the right to require payment immediately on delivery of the Goods and/or completion of the Services or on sending notification that the Goods are in a deliverable state or that the Seller is ready, willing and able to provide the Services if the Buyer has previously failed to make any payment owing to the Seller on the due date or if the Buyer has failed to provide the information or letter of credit referred to in Condition 1.2 in accordance with the provisions of that Condition or if the Seller has received unsatisfactory credit rating information relating to the Buyer
8.2 If the Buyer does not pay the whole or any part of the price on the required day then the Buyer shall pay to the Seller interest on the amount outstanding from the required day until the actual date of payment at the rate of 4% p.a. over the base rate of Barclays Bank plc from time to time in force which shall accrue on a daily basis
8.3 So long as any payment due from the Buyer to the Seller is outstanding, whether under the same or any other Contract or transaction, the Seller shall have a general lien on any Goods and any other property of the Buyer in its possession for whatever purpose and whether worked upon or not and it shall be entitled to retain them and/or suspend work on any Further, the Seller shall be entitled on the expiration of not less than 14 days notice in Writing to the Buyer to dispose of such property and to apply the proceeds towards satisfaction of such debts
8.4 Condition 14 shall apply in the event of any alleged defect or failure in or of the Goods and/or Services and the Buyer shall not delay or refuse to make payment in any such event
8.5 The Buyer shall not be entitled to withhold payment of any amount due to the Seller by reason of any disputed claim by the Buyer in connection with the Contract nor shall the Buyer be entitled to set off against any amount payable under the Contract to the Seller any amount which is not then due and payable by the Seller or for which the Seller disputes liability
9. SUSPENSION AND CANCELLATION
9.1 If the Buyer shall fail to give delivery instructions for or take delivery of the Goods at the time agreed (if any) or if no time is agreed within a reasonable time and/or promptly and diligently carry out any requisite inspections of the Services or make any payment when it becomes due (either under the Contract or under any other Contract between the Seller and the Buyer) or shall commit any other breach of the Contract and fail to remedy the same within 7 days of receiving the Seller’s request in Writing so to do or any distress or execution is levied upon any goods or property of the Buyer or the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being an incorporated company) passes a resolution for winding up (otherwise than for the purposes of amalgamation or reconstruction), or a Court makes an order to that effect, or an encumbrancer takes possession, or an administrative receiver or receiver is appointed, of any of the property or assets of the Buyer, or the Buyer ceases, or threatens to cease, to carry on business or is unable to pay its debts within the meaning of section 123 Insolvency Act 1986, or the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly, the Seller may:
9.1.1 stop any Goods in transit and suspend further deliveries and/or
9.1.2 suspend work on the Contract and/or
9.1.3 hold by way of a general lien all materials or other property of the Buyer in the possession of the Seller in respect of work carried out or to be carried out by the Seller for the Buyer or for the general balance of account for the time being owing to the Seller by the Buyer and/or
9.1.4 determine the Contract forthwith and if the Goods and/or Services, or any part of them have been delivered and/or provided but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary
but without prejudice to the Seller’s right to any unpaid price for Goods delivered and/or Services provided under the Contract and to damages for loss (both direct and consequential) suffered in consequence of such determination
9.2 If the Buyer requires cancellation of the Contract this will only be accepted at the sole discretion of the Seller and unless otherwise agreed in Writing only upon condition that any costs, charges or expenses (both direct and consequential) incurred by the Seller up to the date of cancellation and the value of all loss or damage (both direct and consequential) incurred by the Seller by reason of such cancellation will be reimbursed by the Buyer to the Seller forthwith. Acceptance by the Seller of any cancellation by the Buyer will only be binding upon the Seller if it is made in Writing
9.3 In the event of the Seller other than in any of the circumstances set out in Condition 1 being prevented or hindered from completing the Contract either wholly or in part in accordance with the terms thereof for any reason whatsoever beyond its reasonable control which, for the avoidance of doubt and without prejudice to the generality of the foregoing, shall include governmental action, war, riot, civil commotion, fire, flood, epidemic, labour disputes (including labour disputes involving the work force or any part thereof of the Seller or Supplier), restraints or delays affecting shipping or carriers, currency restrictions and Act of God then further performance of the Contract shall be suspended for the period during which the Seller is so prevented provided that in the event of the Contract being suspended for a continuous period of more than 3 months then either party may give the other notice in Writing to terminate the Contract forthwith and in such circumstances the Buyer shall pay for all Goods supplied and/or Services provided to the date of such termination such payment to be made on or before the last day of the month following the month during which termination was effected. The Seller shall be under no liability whatsoever to the Buyer for any direct or consequential loss or damage suffered by the Buyer as a result of the Seller’s inability to perform its obligations under the Contract in these circumstances
9.4 If the Seller shall be prevented from delivering any of the Goods and/or providing any of the Services in accordance with the Contract as a result of delay or default on the part of the Buyer or any other reason beyond the Seller’s reasonable control and the Contract is not cancelled in accordance with the other provisions of this Condition 9, the Seller shall be entitled to reschedule the date or dates for delivery of those Goods and/or provision of those Services to the time or times it shall reasonably require taking into account its commitments to third parties. The Seller shall also be entitled to be paid insurance, handling and storage charges for Goods and such costs shall be added to and form part of the price for the Goods in the event of such delay or default by the Buyer and notwithstanding Condition 16 such Goods shall be at the sole risk of the Buyer
9.5 The Seller’s rights contained in Condition 15 (but not with the Buyer’s rights) shall continue beyond the discharge of the parties’ primary obligations under the Contract consequent upon its termination
9.6 The termination of the Contract for whatever reason will be without prejudice to the rights and duties of either party accrued prior to termination
10. APPLICATION AND/OR PROVISION OF SERVICES
10.1 When the Contract provides for the Seller to supervise application of the Goods by the Buyer the Seller will supply the necessary competent personnel for supervision purposes only and shall on written agreement agree to supply any necessary equipment and Unless otherwise agreed, the Buyer will supply all other necessary labour, equipment and tools for the application of the Goods
10.2 When the Contract provides for actual application by the Seller and/or provision of Services, the Seller will supply all necessary personnel and tools for the application of the Goods and/or the provision of Services according to the details specified in its quotation
10.3 Where application services or Services are to be provided under Condition 1 or Condition 10.2, unless otherwise agreed in Writing the Buyer will be responsible for:
10.3.1 all necessary preparation of the site including all work to buildings and structures
10.3.2 the proper unloading, safe-keeping and insurance of the Goods from the time of delivery
10.3.3 the provision of scaffolding, lifting and any other equipment (excluding tools) and all services required to apply the Goods or provide the Services
10.3.4 any work whether preparatory to installation or provision of the Services or in the application or provision itself not specifically included in the Seller’s quotation and
10.3.5 giving the Seller access to and possession of the site at such time and in such state as may enable it to complete the application or provision of the Services within any agreed time limit
10.4 If the Buyer fails to provide all or any of the items referred to in Condition 3 when the Seller reasonably requires them or to its reasonable satisfaction, then having given the Buyer a reasonable opportunity to remedy such failure the Seller may in its discretion and at its sole option arrange for the provision of such item or items as it may require and such expense as may be incurred in providing such item or items shall be payable by the Buyer on demand
10.5 The Buyer warrants that where the Goods are to be applied and/or the Services are to be performed in or at the premises of any third party it has full and proper authority for the Seller to enter the premises of that third party to apply the Goods and/or
perform the Services and undertakes with the Seller to inform it forthwith in the event of any suspension or termination of that authority
| 11. | |
| EXTRA COSTS | |
| 11.1 | The Buyer will pay to the Seller any extra costs that it incurs as a result of any variation delay or suspension of work arising from any act or omission of the Buyer or any other contractor employed by the Buyer or any other circumstance for which the Seller is not responsible |
| 12. | ADDITIONAL GOODS/SERVICES |
| 12.1 | Where the Buyer requires Goods and/or Services to be provided in addition to those set out in the Contract but as a part of the Contract, the Buyer shall place an Order in Writing therefor and upon acceptance in Writing by the Seller of such Order the provisions of these Conditions shall apply to those additional Goods and/or Services |
| 13. | CLAIMS FOR DAMAGE IN TRANSIT/SHORTAGES/DEFECTS AND EXCLUSION OF BUYER’S |
| RIGHTS OF REJECTION | |
| 13.1 | Where the Seller is responsible under the Contract for delivery and subject to the provisions of Conditions 7.2 and 14.1, the Seller undertakes to make up any shortage or to repair or at its discretion replace free of charge any Goods which are defective |
| 13.2 | For the purposes of this Condition 13.2 the Buyer shall inspect the Goods within 7 days and whether or not the Buyer carries out such obligation to inspect no claims for non-delivery, shortages in quantity of units delivered, defective Goods, partial loss or damage to Goods will be accepted by the Seller unless: |
| 13.2.1 | they are notified in Writing by the Buyer to the Seller (with a copy to the carrier if the Seller’s own vehicles were not used) within 7 days after the Date of Delivery (in the case of partial loss, damage or defective Goods) or 14 days after the date of the invoice (in the case of non-delivery) |
| 13.2.2 | the Goods in respect of which a claim is made together with the packing are preserved intact as received for a periodof 21 days from notification of any such claim (or 35 days in the case of an export order) and the Buyer permits the Seller or its servants or agents full and free right of access to inspect the Goods and investigate the claim and |
| 13.2.3 | if the Buyer fails to give the appropriate notice as specified in Condition 13.2.1, the Buyer’s claim will be deemed to have been waived and will be absolutely barred |
| 13.3 | Section 3 Sale and Supply of Goods Act 1994 shall not apply |
| 14. | WARRANTY |
| 14.1 | In substitution for all and any other rights which the Buyer might or would have had but for these Conditions and subject to Conditions 13.2 and 13.3, the Seller shall make good by replacement or, at its option, repair any failure (fair wear and tear excepted) in the Goods and/or Services which, under conditions of proper use and maintenance, results from defects in the Seller’s manufacture, design, materials or workmanship and which appears not later than [6] months after the date on which the Seller notifies the Buyer that the Goods are ready for delivery or, if there was no such notification, the Date of Delivery or after the date on which the provision of the Services is completed |
| 14.2 | Notwithstanding the provisions of Condition 14.1, in the case of a claim falling within Condition 14.1, the Seller reserves the right at its sole discretion to credit the Buyer in full the price paid by the Buyer to the Seller |
| 14.3 | The Seller’s liability under this Condition shall automatically cease if: |
| 14.3.1 | the Buyer shall not have paid for all Goods supplied and/or Services provided under any Contract by the due date or is otherwise in breach of this or any other contract made with the Seller or |
| 14.3.2 | the Seller or its servants or agents are denied full and free right of access to the allegedly defective Goods and/or Services or |
| 14.3.3 | the Buyer has not properly maintained the Goods or has not complied with any Recommendations for Use or |
| 14.3.4 | the Buyer or any other person (other than the Seller its servants or agents or some person authorised by the Seller) effects or attempts any repair or replacement or other rectification of allegedly defective Goods and/or Services or |
| 14.3.5 | the Buyer uses any spare parts or replacements not manufactured or provided by the Seller or |
| 14.3.6 | the defect or failure is caused by a breach by the Buyer of its undertakings and warranties contained in Condition 14 or |
| 14.3.7 | the defect or failure is caused by wilful damage, neglect, mis-use, accident or abnormal working conditions or continued use after a defect has become apparent or |
| 14.3.8 | the Buyer has failed to notify the Seller in Writing of any defect or suspected defect within 14 days of the same coming to the knowledge of the Buyer |
| 14.4 | THE WARRANTY SET OUT IN CONDITION 14.1 SHALL BE IN LIEU OF ANY WARRANTIES CONDITIONS OR UNDERTAKINGS WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE HOWSOEVER WHICH WARRANTIES, CONDITIONS AND UNDERTAKINGS ARE HEREBY EXPRESSLY EXCLUDED, EXCEPT THAT SUCH EXCLUSIONS WILL NOT APPLY TO ANY IMPLIED CONDITION THAT THE SELLER HAS OR WILL HAVE THE RIGHT TO SELL THE GOODS WHEN THE PROPERTY IS TO PASS |
| 14.5 | THE SELLER’S RESPONSIBILITY IS LIMITED TO THE TERMS OF THE FOREGOING PROVISIONS OF THIS CONDITION AND (EXCEPT IN RESPECT OF DEATH OR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF THE SELLER, ITS SERVANTS OR AGENTS) THE SELLER SHALL NOT BE LIABLE FOR ANY CLAIM FOR DIRECT OR INDIRECT CONSEQUENTIAL OR INCIDENTAL LOSS,INJURY OR DAMAGE WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT) MADE BY THE BUYER OR ANY THIRD PARTY AGAINST THE SELLER ARISING OUT OF OR IN CONNECTION WITH ANY DEFECT IN THE GOODS AND/OR SERVICES WHETHER OR NOT SUCH DEFECT IS DIRECTLY OR INDIRECTLY WHOLLY OR IN PART CAUSED BY THE ACT, OMISSION, DEFAULT OR NEGLIGENCE OF THE SELLER, ITS SERVANTS OR AGENTS AND WHETHER OR NOT SUCH DEFECT AMOUNTS TO A BREACH OF A FUNDAMENTAL TERM OR A PRIMARY OBLIGATION OF THE CONTRACT OR A FUNDAMENTAL BREACH THEREOF |
| 15. | TITLE TO GOODS |
| 15.1 | In this Condition the following expressions shall have the following meanings: New Goods” means goods produced by the Buyer converting, incorporating or mixing the Goods with other goods prior to the property in the Goods passing to the Buyer and includes any of them and any part of them “Supplied Goods” means the Goods and the New Goods and includes any of them and any part of them |
| 15.2 | Until payment in full of all monies due and owing by the Buyer to the Seller on any account whatsoever has been received full legal and beneficial ownership of the Goods shall be retained by the Seller notwithstanding that the risk in the same shall pass to the Buyer at the time of delivery |
| 15.3 | The Buyer may convert or incorporate the Goods into or mix the Goods with other goods to produce the New Goods prior to the property in the Goods passing to the Buyer but in that event the property in the New Goods (whether the other goods into which the Goods have been converted or incorporated or with which the Goods have been mixed belong to the Buyer or not) shall be and remain with the Seller immediately upon such conversion, incorporation or mixture until: |
| 15.3.1 | the purchase price of the Goods has been paid in full and |
| 15.3.2 | payment to the Seller of any sum which is at the date of the Contract or may thereafter become due or owing from the Buyer to the Seller |
| 15.4 | Until payment in full of all monies due and owing by the Buyer to the Seller on any account whatsoever has been made the Buyer shall hold the Supplied Goods in a fiduciary capacity and as bailee of the Seller and shall at all times take proper care of the same and will not obliterate any identifying mark on the Supplied Goods or their packaging and (save where the Goods are being converted or incorporated into or mixed with other goods to create New Goods) will keep the Supplied Goods separate from any other goods and in such manner that they may be clearly identified as belonging to the Seller and the Buyer hereby grants to the Seller the right to enter on the Buyer’s premises at any time during the continuation of the Contract to check that the Buyer is complying with the obligation contained in this Condition. The Buyer will return the Supplied Goods to the Seller if it receives a request whether verbally or in Writing so to do prior to payment in full as aforesaid having been made |
| 15.5 | The Buyer’s liberty to convert or incorporate the Goods into or mix them with other goods and the Buyer’s liberty to deliver the Supplied Goods to a third party shall cease upon the termination doubt, no Buyer shall have any right whatsoever to re-brand or in any way re-package any of the Supplied Goods and shall not have any right to re-distribute or re-sell the Supplied Goods (for the avoidance of doubt, other than following application of the Supplied Goods) without the prior written consent of the Seller of the Contract and for the avoidance of and shall not have any right to re-distribute or re-sell the Supplied Goods (for the avoidance of doubt, other than following application of the Supplied Goods) without the prior written consent of the Seller |
| 15.6 | Where the Seller is unable to determine whether any goods are the Goods, the Buyer shall be deemed to have converted, incorporated, mixed or sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer and any new goods so created shall be deemed to have been delivered to the Buyer’s customers in the order in which they were created |
| 15.7 | Subject to Conditions 15.8 and 15.9, the Buyer shall be at liberty to sell the Supplied Goods in trust to pay to the Seller such sums to which it is entitled under the provisions of the Contract provided that the sums due to the Seller shall be kept separate from any moneys of the Buyer and/or any third party. Notwithstanding the provisions of this Condition 15.7, the Buyer may retain from the proceeds of such sale any sum in excess of the sum or sums to which the Seller is entitled under the Contract or any other Contract between the Seller and the Buyer |
| 15.8 | The Seller may at any time revoke the Buyer’s conditional power of sale contained in Condition 15.7 by giving 24 hours’ prior notice in Writing of such revocation and without notice in the event of the Buyer being in default for longer than 14 days in the payment of any sum whatsoever due to the Seller from the Buyer (whether in respect of the Goods and/or Services which are the subject of the Contract or in respect of any other Contract between the Seller and the Buyer) or if the Seller has bona fide doubts as to the solvency of the Buyer |
| 15.9 | The Buyer’s conditional power of sale contained in Condition 15.7 shall automatically cease if: |
| 15.9.1 | a receiver or administrative receiver is appointed over the whole or any part of the assets or the undertaking of the Buyer or a winding up order is made against the Buyer or the Buyer goes into voluntary liquidation (except solely for the purpose of reconstruction or amalgamation) or calls a meeting or makes any arrangement with its creditors or becomes subject to an administration order or commits any act of bankruptcy or |
| 15.9.2 | the Buyer pledges or in any way charges by way of security for indebtedness the whole or any part of the Goods and in either event all moneys then due in accordance with Condition 8 shall become payable forthwith notwithstanding the provisions for payment contained in Condition 8 or |
| 15.9.3 | the Seller has bona fide reason to believe that the Buyer is not complying with the obligations contained in Condition 16.4 |
| 15.10 | On determination of the Buyer’s conditional power of sale under Conditions 15.8 and/or 15.9, the Buyer shall place all Supplied Goods in the Buyer’s possession at the Seller’s disposal and the Seller shall be entitled to enter upon the premises of the Buyer for the purpose of removing the same using such force as is reasonably necessary for such purpose and (if necessary) dismantling the Supplied Goods from anything to which they are attached |
| 15.11 | If at the time of the determination of the Buyer’s conditional power of sale under Conditions 15.8 and/or 15.9, any Supplied Goods are in the custody or control of any individual, firm or company other than the Buyer, the Buyer shall immediately provide the Seller with an authority in Writing to collect the same and the same shall then be at the Seller’s disposal |
| 15.12 | Should the Contract require the application of the Goods at or in the premises of any third party, the Buyer shall notify the third party before installation begins of the terms of this Condition 15 and obtain the acknowledgement in Writing of the third party (sending a copy thereof to the Seller) that the third party has noted the terms of this |
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