Conditions of Sale
In these conditions:
“the Company” means ADP Safety Supplies Ltd.
“the Buyer” means any company, firm, individual or agent thereof to whom the Company’s acknowledgment of order, delivery note or invoice is addressed.
“the Goods” means the products (including parts and accessories), materials and /or services to be supplied by the company.
2. Applicability of Conditions
The Company concludes contracts for the supply of Goods subject only to these conditions. The buyer accepts that these Conditions shall govern relations between itself and the Company to the exclusion of any other terms including, without limitation, conditions and warranties written or oral express or implied even if contained in any of the Buyer’s documents which purport to provide that the Buyer’s own Terms shall prevail. No variation or qualification of these Conditions or of any quotation or contract arising here from shall be valid unless agreed in writing by a Director of the Company.
The terms of the Contract consist of those contained in these Conditions of Sale. The Buyer shall not be entitled to rely on any other representations. statements or warranties whatsoever unless specifically confirmed by the Company in writing to the individual Buyer.
(i) Prices contained in the Company’s price lists, catalogues, booklets, advertising matter or similar matter are for general guidance only.
(ii) If between the date of the order of the Goods and the date of delivery of the Goods there is an increase in the cost of the Goods, packing carriage, delivery, duty, tax or any other impost thereon (including a rise caused by the devaluation or revaluation of any currency) the price shall be adjusted by adding thereto the amount of the increase in such costs or levels whether or not such an increase was or should have been foreseeable by the Company.
(iii) If, however, it is expressly agreed in writing between the Company and the Buyer that the price of the Contract should be a fixed price and not subject to any variation either by rise or fall in the costs or levels referred in (ii) above such fixed price will be the price of the Contract. If delivery of the order or any part thereof is delayed at the Buyer’s request the fixed Contract price of such proportion thereof as relates to the part delayed as aforesaid will be subject to the variation (if any) set out in (ii) herein and will be adjusted accordingly.
(iv) Unless otherwise stated prices do not include V.A.T which will be chargeable at the date of despatch and/or performance of services as the case may be.
(v) If in the reasonable opinion of the Company the credit rating of the Buyer becomes unsatisfactory prior to the delivery or if the Buyer fails to perform or observe any obligations on its part to be performed under this or any other Contracts made with the Company the Company shall be entitled at it’s discretion to delay delivery of the goods until the payment thereof is rendered by the Buyer or until such obligations are duly performed or observed or by notice in writing to the Buyer unilaterally to cancel the Contract for the supply of goods.
(i) Delivery will be affected by the Company at the Buyer’s premises or to such other place as is mutually agreed. The Goods shall be at the Buyer’s risk on either entry on to the Buyer’s premises or on being placed into the custody on the Buyer’s behalf and should be insured accordingly.
(ii) Notwithstanding the method of delivery the Buyer shall carefully examine the Goods on receipt of the same and shall give the written notice of any short delivery or over delivery which must be received by the Company within 3 days of receipt of the Goods and in the case of any defects reasonably discoverable on careful examination written notice must be received by the Company within 10 days of receipt of the Goods.
(iii) In the event that the Company and the Buyer agree to transfer the Goods by a method other than delivery effected by the Company, then the risk of loss or damage of any kind in the Goods shall pass to the Buyer whichever of the following events occur earlier:-
(a) collection by or on behalf of the Buyer or buy an independent carrier for despatch to the Buyer.
(b) 7 days from the date of notice given by the Company that the Goods are ready for collection or despatch.
If the Goods shall not have been collected by or on behalf of the Buyer or by an independent carrier for despatch to the Buyer within 7 days of the Company’s written notice pursuant to sub paragraph (iii) (b) herein then the Company may at any time thereafter send to the Buyer a further notice notifying the Buyer of the Company’s intention to sell the same after expiration of a period of not less than 7 days from the date of notice.
(iv) If the Buyer neglects to serve notice under sub-paragraph (ii) above any over delivery then the Company may at it’s option either repossess the excess Goods or invoice them and be paid for forthwith by the buyer for the excess Goods at the price ruling at the date of delivery.
Unless expressly agreed in writing with the Buyer or stated on the face hereof payment shall be made for the Goods in full in sterling or at the option of the Company, the Buyer’s currency, without any deduction or deferment on account of any disputes or cross claims whatsoever not later than 30 days following month end of the date of the Company’s invoice in respect of the Goods. Time for payment shall be of the essence. Where full payment is not received by the due date the Company shall be entitled to charge interest on the sum outstanding at the rate of 2% per month calculated on a daily basis but without prejudice to the Company’s rights to receive payments on the due dates.
7. Property in Goods
(i) Notwithstanding any agreed terms of payment, neither legal or beneficial title of the Goods will pass to the buyer until
(a) the Buyer has paid to the Company all sums due and payable from the Buyer under this Contract and any other contract between the Buyer and the Company; or
(b) the Company serves on the Buyer notice in writing to that effect whichever shall happen first.
(ii) The Buyer hereby licenses the Company, its servants and agents to enter upon any premises of the Buyer for the purpose of either satisfying itself that Condition 7 (iii) below is being complied with by the Buyer and/or, if the Company has terminated the Buyer’s right of resale pursuant to Condition 7(v) below or in the event of determination or repudiation of the contract (however so occurring), for the purposes of recovering any Goods in respect of which property has not passed to the Buyer.
(iii) Until title of the Goods has passed to the Buyer, the Buyer shall possess the Goods as a bailee of the Company the terms of the bailment being modified by this Contract and the Buyer shall store the Goods separately from other goods and shall ensure that they are clearly identifiable as belonging to the Company.
(iv) Notwithstanding that title has not passed and subject to Condition 7(v) the Buyer may resell the goods in the ordinary course of business as mercantile agent but only on terms that title to the goods shall not pass to the purchaser until the Buyer as mercantile agent has received payment in full of all moneys owing from the purchaser. Such resale shall give rise to no obligation whatsoever whether contractual or otherwise by the Company. Until such payment is made to the Company reserves the right to recover payment for the Goods from the purchaser in accordance with the provisions of sub-section 12(3) of the Factors Act 1889. The Buyer shall keep accurate records of the Goods resold and shall include in those records details of price of any resale, the identity and address of the purchaser and the date the resale price was paid, if at all.
(v) The Buyers rights of resale may be terminated by the Company upon oral of written notice to the Buyer immediately if the Buyer defaults in payment of any sum when due (or fails to pay any instalment in which case the whole outstanding balance shall be immediately become due) and shall automatically cease if a receiver is appointed over any of the assets of the Buyer, or any person shall become entitled to levy distress in respect of any assets situated at any premises of the Buyer, or a judgment is entered against the Buyer and is not paid out within seven days, or a petition is presented for an administration order in respect of the Buyer, or a petition is presented or notice is given of a resolution to wind up the Buyer or the Buyer is deemed to be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 of if the Buyer is prohibited from trading. The Buyer shall immediately notify the Company on the occurrence of any of the events listed above.
(vi) The Buyer shall not be entitled to pledge or grant any security in any way for any indebtedness over or in respect of any of the Goods which remain the property of the Company.
(vii) Notwithstanding the provisions of Conditions 7(iv), (v) and (vi), the Company shall, if it retakes the Goods and resells them, account to the Buyer for the balance (if any) as determined pursuant to Condition 7 (viii).
(viii) The balance in respect of which the Company shall account to the Buyer in the circumstances specified in Condition 7(vii) shall be the proceeds of sale of the Goods less:
(a) the expenses of resale; and
(b) the sum owing from the Buyer to the Company.
Under EC Directive 89/656/EEC the responsibility for establishing the suitability of any of the Company’s products for the intended purpose and it’s subsequent selection and use shall rest upon the Buyer and the Company shall not be liable for any loss or damage whether consequential or otherwise.
The Company in compliance with the requirements of the EC Directive 89/686/EEC will make available the buyer such relevant data as is necessary to assist the correct select of products supplied by the Company, and the buyer shall not rely on representations made by the Company or on behalf of the Company.
(i) The Company’s liabilities arising in connection with the sale of Goods to the Buyer shall be limited to:
(a) any liability which the Company may have for death or personal injury resulting from the Company’s negligence;
(b) any liability for breach of the obligations arising under section 12 of the Sale of Goods Act 1979 (as amended);
(c) the Contract price of the Goods in question or, in the case of a constituent part of any goods proving to be defected, the cost of manufacture of such part.
(ii) The Company shall in no circumstances be liable for any consequential or special loss or damage or claim by the Buyer howsoever such loss, damage or claim may be caused and whether such liability arises in contract or in tort or by reason of any misrepresentation including without limitation, delay, detention, loss of production, loss of profit, loss of time, charges, or liability to third parties.
10. Partial Completion
In the case of partial completion of an order the Company shall be entitled to a quantum meruit in respect of all work done by it without prejudice to it’s rights should non-completion be occasioned by the Buyer.
In the event of any claim of any kind made against the Company in connection with any Goods delivered by it (apart from a claim under Condition 9(i) set out above) the Buyer shall indemnify the Company against such claim by whomsoever including the Buyer such claim shall be made and whatsoever are the grounds of such a claim.
If the Buyer refuses or fails to provide forwarding instructions or take delivery of Goods tendered in accordance with these Conditions, the Company shall be entitled to demand immediate payment for such Goods. The Company shall be entitled to store or arrange storage of any such Goods at the risk and cost of the Buyer.
The Company shall be relieved from any liability under any Contract if and to the extent that it may become unable to carry out all or any of its obligations as a result of any event or matter beyond its reasonable control. By the way illustration and not of limitation, the following are considered as events beyond the reasonable control of the Company: Strike, lock-out or other industrial dispute, public disorder, riot, revolution, mobilisation, hostilities, war (whether or not formally declared), epidemic, fire, earthquake, storm, flood and other acts of God, official regulations, orders, requirements or acts of any government or administrative authority, transportation difficulties, machine breakdown, failure of supplies or other causes. Where there is any shortage of goods, materials, energy or labour the Company will endeavor to allocate available resources fairly between one Buyer and another. The Company’s decision as to any such allocation shall be final and insofar as such allocation results in the shortfall or delay to the Buyer of Goods or other non-performance of these Conditions such shortfall, delay or non-performance shall be deemed to arise from matters beyond the control of the Company and the Company shall be relieved from liability accordingly.
Import or Export Licenses and other Formalities
The Buyer shall promptly obtain all necessary import licenses, clearances and other consents necessary for the purchase of the Goods. The Company shall following request from the Buyer supply all documents reasonably required by the Buyer for this purpose.
(i) All Goods sold in retail packaging may be resold by the Buyer only in the packaging supplied by the Company and in no case may any trade mark other than those applied by the Company be marked on or applied in relation to the Goods.
(ii) No right or license is granted under this contract to the Buyer under any patent, copyright, registered design or other intellectual property right except the right to use, or subject to these Conditions, resell the Goods.
Unless otherwise provided in writing any written communication or notice under the contract shall be made or given by sending the same by ordinary prepaid first class letter post in the case of the Company to it’s current address and in the case of the Buyer to it’s last known address and if so sent shall be deemed to be made or given two days after the date when posted.
12. Laws and Interpretation
The contract shall be governed by English Law and the Buyer shall submit to the non exclusive jurisdiction of the English Courts. If any of these conditions or any part thereof is rendered void or unenforceable by any legislation to which it is subject or by any rule it shall be void or unenforceable to that extent and no further.
13. Scottish Law Retention of Title
Title of Goods shall not pass to the Buyer until the Goods have been paid for in full.