In this document the following words shall have the following meanings:
1.1 “Buyer” means the organisation or person who buys Goods from the Seller
1.2 “Goods” means the articles to be supplied to the Buyer by the Seller
1.3 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable
1.4 “List Price” means the list of prices of the Goods maintained by the Seller as amended from time to time
1.5 “Seller” means John C Wilkins Acoustic Supplies Ltd
1.6 ‘contract’ means a contract between the Buyer and the Seller which is subject to these Terms and Conditions
2.1 These Terms and Conditions shall apply to all contracts for the sale of Goods to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties
2.2 Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller prior to the contract coming into force.
3 PRICE AND PAYMENT
3.1 The price for the Goods shall be that in the Seller’s current List Price at the date that the contract comes into force, or such other price as the
parties may agree in writing prior to the contract coming into force. The price is exclusive of VAT or any other applicable costs. Carriage and any packaging costs shall be paid for by the Buyer.
3.2 Payment of the price and VAT and any other applicable costs shall be due within 30 days of the date of receipt of the invoice supplied by the Seller. The Seller may raise invoices in respect of the Goods (and/or other items) at any time following the contract coming into force in its absolute discretion.
3.3 The Seller shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 10% per annum above the base rate of the Bank of England.
3.4 If payment of the price or any part thereof is not made by the due date, the Seller shall be entitled to:
3.4.1 require payment in advance of delivery in relation to any goods not previously delivered, whether under this contract or not;
3.4.2 refuse to make delivery of any undelivered goods whether ordered under the contract or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;
3.4.3 terminate the contract or any other contract between the parties.
Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.
Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so as to constitute a sale by sample.
6.1 Unless otherwise agreed in writing, delivery of the Goods shall take place at the address agreed between the Buyer and the Seller in writing prior to the contract coming into force, on the date specified by the Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
6.2 The date of delivery specified by the Seller is an estimate only.
6.3 If the Seller is unable to deliver the Goods for reasons beyond its control then the Seller shall be entitled to place the Goods in storage until such times as delivery may be effected and the Buyer shall be liable for any expense associated with such storage.
Risk in the Goods shall pass to the Buyer at the moment the Goods are dispatched from the Seller’s premises. Where the Buyer chooses to collect the Goods itself, risk will pass when the Goods are entrusted to it or set aside for its collection, whichever happens first. The Buyer must therefore be insured accordingly.
8.1 Notwithstanding that risk in the Goods shall pass to the Buyer in accordance with clause 7, title to Goods sold pursuant to a contract (whether they remain separate and identifiable or not, or whether they are incorporated in or are mixed with other goods belonging to the Seller, the Buyer or a third party) shall remain with the Seller until payment in full has been received by the Seller:
8.1.1 for those Goods;
8.1.2 for any other goods supplied by the Seller;
8.1.3 of any other monies due from the Buyer to the Seller on any account and for any reason.
8.2.1 Until title to any goods passes to the Buyer as above the Buyer shall keep all goods separately and readily identifiable as the property of the Seller; not attach the goods to real property without the Seller’s consent; not sell the goods to a third party (whether as part of another product or alone).
8.2.2 Notwithstanding clause 8.2.1, any resale by the Buyer in which property has not passed to the Buyer shall be a sale by the Buyer as bailee of the Seller (as between the Seller and the Buyer only) and subject to the following provisions, the Buyer owes to the Seller the normal fiduciary obligations of a bailee by way of
custody in respect of the goods. In so far as the Buyer shall, or shall purport to, offer for sale and sell the goods, it shall do so only at the best obtainable price in the ordinary course of its business as principal and not as agent for the Seller. The Seller shall, by reason of the said relationship of bailment between the Buyer (as bailee) and itself (as bailor), be and remain legally and beneficially entitled to the proceeds of sale and the Buyer shall pay such proceeds of sale into a separate account or, otherwise, shall ensure that all the proceeds of sale are kept by or on behalf of the Buyer in a separate and identifiable form. The proceeds shall not be paid into an overdrawn bank account. Upon receipt of the proceeds of sale, the Buyer shall discharge the debt due to the Seller and shall not use or deal with the proceeds of sale in any way whatsoever until such debt has been discharged.
8.3 The Buyer’s rights to possession of those goods shall cease if it does anything or fails to do anything which would entitle an Administrator or Administrative Receiver to take possession of any of the assets in the possession of, or control of, the Buyer or would entitle any person to present a petition for winding up against the Buyer.
8.4 The Buyer grants the Seller an irrevocable license to enter at any time anyvehicles or premises owned or occupied by the Buyer or in its possession for the purpose of repossessing and removing any such goods the property in which it has remained in the Seller under Clause 8 hereof. The Seller shall not be responsible for and the Buyer will indemnify the Seller against liability in respect of damage caused to such vehicles or premises in such repossession and removal being damage it was not reasonably practicable to avoid when exercising its rights in accordance with this Clause 8.
8.5 Notwithstanding clause
8.2.2, the Buyer must ensure that if the Goods are to become affixed to any land or building they shall be capable of being removed without material injury to such land or building and to take all necessary steps to prevent title to the Goods from passing to the landlord (if any) of such land or building. The Buyer warrants to repair and make good any damage caused by the affixation of the Goods to or their removal from any land or building and to indemnify the Seller against all loss damage or liability it may incur or sustain as a result of such affixation or removal.
8.6 The Buyer is licensed by the Seller to process the goods but in so doing confirms a bailment for processing relationship with the Seller, the new product or products or any chattel created shall be separately stored and marked so as to be identifiable as the property of the Seller as bailor.
8.7 A cheque given by the Buyer to the Seller in payment shall not be treated as a discharge until the same has been met on presentation.
Where the Goods have been manufactured and supplied to the Seller by a third party,
any warranty granted to the Seller in respect of the Goods shall be passed on to the Buyer.
The Seller has no knowledge or control over the proximate or ultimate use to which
any of its products may be put and accordingly and as otherwise may be required by
the Unfair Contract Terms Act 1977:
10.1 No liability of any nature shall be incurred or accepted by the Seller in respect of any representation made by the Seller, or on its behalf, to the Buyer, or to any party acting on its behalf, prior to the making of a contract where such representations were made or given in relation to:
10.1.1 the correspondence to the Goods with any descriptions;
10.1.2 the quality of the Goods; or
10.1.3 the fitness of the Goods for any purpose whatsoever.
10.2 No liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of this contract where such term relates in any way to;
10.2.1 the correspondence of the Goods with any description;
10.2.2 the quality of the Goods; or
10.2.3 the fitness of the Goods for any purpose whatsoever.
10.3 All implied terms, conditions or warranties as to the correspondence of the Goods to any description or the satisfactory quality of the Goods or the fitness of the Goods for any purpose whatsoever (whether made known to the Seller or not) are hereby excluded from the contract.
10.4 The Seller does not accept liability in any circumstances and whether in contract, tort or on any other basis whatsoever and however caused for:
10.4.1 any loss of profit, business, contracts, revenues or anticipated savings; or
10.4.2 any special, indirect or consequential damage of any nature whatsoever.
11 LIMITATION OF LIABILITY
11.1 Where any court or arbitrator determines that any part of Clause 10 above is, for whatever reason, unenforceable, or in any event, the Seller is found liable whether in contract, tort (including negligence or breach of statutory duty), breach of third party rights or otherwise, the Seller’s liability for the loss or damage suffered by the Buyer shall not exceed the amount of insurance which is available to the Seller in relation to any claim that is made against the Seller.
11.2 Nothing contained in these Terms and Conditions shall be construed so as to limit or exclude the liability of the Seller for death or personal injury as a result of the Seller’s negligence of that of its employees or agents or to liability in relation to fraud.
12 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of a contract shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.
13 FORCE MAJEURE
The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the contract.
14 RELATIONSHIP OF PARTIES
Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
15 ASSIGNMENT AND SUB-CONTRACTING
The contract between the Buyer and Seller for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of the Seller.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any subsequently to enforce all Terms and Conditions of a contract.
If any term or provision of these Terms and Conditions is held invalid illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
18 GOVERNING LAW AND JURISDICTION
A contract shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
19 THIRD PARTIES
No third party shall have any rights to enforce any term of any contract, to which these conditions apply, under the Contracts (Rights of Third Parties) Act 1999 and all rights on the part of, or for the benefit of, any third party which arise or may arise out of such contracts under that Act are hereby excluded.