TERMS AND CONDITIONS OF SALE
1. Interpretation. In these Terms and Conditions (Terms), the following words and phrases shall have the following meanings: “the Buyer” means the person, firm or company who purchases the Goods from the Company: “the Company” means “United Fence Products, Inc. ltd”, the sole licensee of the intellectual property, copyrights and trademarks rights owned and licensed to the Company by Mr. Richard Perry; “Contract” means the contract between the Company and the Buyer which shall be deemed to incorporate these Terms; “Force Majeur” means acts, events, omissions or accidents beyond the reasonable control of either the Company or the Buyer, including (without prejudice to the generality of the foregoing) those matters set out in the Schedule hereto. “Goods” means any goods agreed in the Contract to be supplied by the Company to the Buyer; “Manufacturer” means the supplier of the Goods to the Company; “Place of Delivery” means the place to which the Goods are to be delivered. “RRP” means the Manufacturer’s recommended retail price of the Goods In these Terms, reference to any statute or statutory provision shall be construed as a reference to such statute or statutory provision as amended, modified, re-enacted or replaced from time-to-time.
2. The Contract. The Contract shall be on these Terms to the exclusion of all other terms and conditions, (unless the parties hereto have entered into a Wholesale Distributorship Agreement in which case the terms thereof will also apply to the Contract) including any such terms and conditions that are purported to be included or applied by the Buyer. No terms and conditions contained in the confirmation of order, purchase order or other document of the Buyer will form part of the Contract and should any such document or contract issued by the Buyer conflict, these Terms shall prevail. In the event of any conflict between these Terms and any Wholesale Distributor Agreement entered into between the parties hereto, then the Wholesale Distribution Agreement shall prevail.
2B. Buyers Order. The Buyers order is deemed to have been accepted by the Company when confirmed in writing only by way of a completed sales order issued by the Company and the Buyer should ensure the order is accurate, that the quantity, quality and description of the Goods are to be as set out in the Company’s quotation or the Buyers Order, and should the Buyer cancel the order after the statutory 14 day period, the company shall be entitled to terminate any contract with the Buyer and may be entitled to compensation.
3. Delivery. Unless otherwise agreed in writing, the Place of Delivery shall be the Company’s premises and the Buyer shall take delivery within 7 days of the Company notifying the Buyer that the Goods are ready for delivery. Any dates specified by the Company for delivery of the Goods are intended to be an estimate only. If no date is specified for delivery of the Goods, delivery shall be within a reasonable time. Subject to the other provisions of these Terms, the Company shall not be liable for any loss, whether direct or consequential, economic or loss of profits or otherwise, arising directly or indirectly out of any delay in the delivery of the Goods nor will any delay entitle the Buyer to terminate or rescind the Contract unless the delay exceeds 90 days. Each delivery or consignment will stand as a separate contract. Failure or delay in one delivery shall not invalidate the contract as a whole or entitle the Buyer to defer payments for any previous or remaining delivery. Any Goods not available at the time of the Buyer’s order will be sent to the Buyer, as soon as possible, when received from the Manufacturer. Goods requiring special appliances for unloading such as a forklift truck are delivered on the understanding that such appliances are made available by the Buyer, and at the buyer’s expense and risk, at the Place of Delivery.
4. Risk in and Ownership of the Goods. Risk in the Goods shall pass to the Buyer on delivery. Ownership in the Goods shall not pass to the Buyer until the Company has received in full in cleared funds all sums due to the Company in respect of the Goods and all other sums which are or may become due to the Company from the Buyer on any account. Until ownership of the Goods has passed to the Buyer, the Buyer shall: 1).hold the Goods on a fiduciary basis as the Company’s bailee; 2).store the Goods separately from all other goods of the Buyer or any third party in such a way that they remain identifiable as the Company’s property; 3).not destroy or deface any identifying mark on the Goods or their packaging; 4).maintain the Goods in satisfactory condition insured with the Company’s interest noted on the policy and hold any proceeds of such insurance on trust for the Company and not mix them with any other money. In the event the Buyer is in default of any payment to the Company or announces it is ceasing to trade, suspends payments and/or notifies any of its creditors that it is unable to meet debts or that it is about to suspend payment of its debts or enter into a composition or arrangement with or makes any assignment for the benefits of its creditors or if a receiver is appointed of the Buyers property or assets or any part thereof or a court order is made or a resolution passed for the winding up of the Buyer (being a limited company) except for the purposes of reconstruction or amalgamation or the Buyer commits any act of bankruptcy, the Company’s consent to the Buyer’s possession of its Goods shall cease and the Company shall be entitled forthwith to enter the Buyer’s premises (or other location if the Goods are not being stored at the Buyer’s premises) and repossess its Goods and the purchase price of the Goods shall become immediately due and payable. In the event the Goods are stored on another premises aside from the buyers premises the Company reserves the right to enter such other premises on permission of the owner. In the event that before the property in the Goods has been passed to the Buyer and the Buyer resells the Goods, the resale shall be treated a s a sale by the Buyer as agent for the Company and the Buyer shall be liable to account to the Company for the proceeds of such sales. Without prejudice to the Buyer’s continuing obligation to pay the Company for any Goods he has resold prior to making such payment the Buyer, if he does not receive the proceeds of such resale, will, if so requested by the Company, transfer to the Company all rights of recovery he may have against the purchaser. The Company undertakes to account to the Buyer for any such sums received from such purchaser from the Buyer in excess of amounts due by the Buyer to the Company. In such circumstances as laid out above, the sale proceeds of the Goods shall be deemed to create a registrable charge.
5. Price. The Price of the Goods shall be the Company’s quoted price which shall be binding on the Buyer provided that the Buyer shall accept the Company’s quotation within 30 days. Acceptance of quotations includes acceptance of all the Company’s terms and conditions and in particular, but without prejudice to the generality of the foregoing, of these Terms and is conditional upon the Buyer not having exceeded his credit limit determined by the Company (in the Company’s absolute and unfettered discretion)and in instances where the credit limit is exceeded, the quotation is determined and/or treated as void abinitio and shall have no contractual effect. The Company may give notice in writing to the Buyer at any time up to 5 working days prior to delivery that it wishes to increase the Price of the Goods to reflect any increase in the cost to the Company which is due to factors occurring after the making of the Contract and which are beyond the reasonable control of the Company PROVIDED that the Buyer may cancel the contract in writing within 7 working days of any such notice from the Company. The price for the Goods shall be exclusive of all costs of carriage and insurance and applicable VAT which the Buyer shall pay in addition. The Buyer shall pay such deposit as the Company shall direct
6. Payment. Subject to paragraph 5, payment of the price of the Goods (“the price”) shall be due 30 days from the date of the Company’s invoice for the Goods unless otherwise agreed. Provided that no other payments are due from the Buyer to the Company the Buyer shall be entitled to deduct a prompt payment discount of 1% of the Price for payment made within 5 working days of the Company’s invoice. Payment shall not be deemed to have taken place until the receipt by the Company of cleared funds. The Company will exercise its statutory right to claim interest and compensation for debt recovery costs under The Late Payment of Commercial Debts (Interest) Act 1998 if it is not paid in accordance with these Terms.
6B. Security. The Company will be entitled at any time to require the Buyer to provide proof of financial status and/or security for the price whilst it remains unpaid and in the event of the Buyer being unable to do so, the Company will be entitled to withdraw from any existing contracts without liability.
6C. Buyer Default. Should the Buyer fail to accept deliveries or pay for the storage of the Goods by the last day of the contract period with the exception of Force Majeure the quantity not delivered against the mean contract quantity will be understood to be in default and the Company reserves the right to sell the Goods at the current market price on the account of the Buyer and may charge interest and expenses incurred in doing so and deduct these from any sum so realised prior to paying any balance over to or claiming any shortfall from the Buyer or claim damages from the Buyer.
7. Warranties. The Company warrants that the Goods are of marketable quality. If the Buyer wishes to make a claim under this warranty, the Buyer shall give written notice to the Company within 30 days of the discovery of the defect and give the Company a reasonable opportunity to inspect the Goods in question. The Company shall not be liable for any breach of warranty if the Buyer makes any further use of the Goods after giving such notice or alters or repairs the Goods without the agreement of the Company in writing.. The Company’s liability under the warranty shall be limited to repairing or replacing the Goods in question or refunding the price of such Goods. All implied terms, conditions and warranties relating to the quality and/or fitness for purpose of the Goods (or any of the Goods) are excluded to the fullest extent permitted by law. If the Buyer rejects any of the Goods which are not in accordance with these Terms the Buyer shall nonetheless pay the full Price for such Goods unless the buyer promptly gives notice of rejection to the Company and at the Buyer’s own cost return the Goods to the Company prior to the date when payment of the Price is due.
8. Sale By Sample: The bulk of the Goods are sent in good faith and will correspond with the sample in quality provided that the Company shall have no liability to the Buyer unless more than 20% of the Goods do not correspond. There is no implied condition that the Goods supplied will be identical to samples supplied. The Buyer shall be deemed to have had a reasonable opportunity of comparing the bulk of any consignment of Goods with the sample after 3 days from delivery have expired. Upon the Buyer having been deemed to have had a reasonable opportunity of comparing the bulk of any consignment with the sample the Buyer will also be deemed to have notice of any defect rendering the Goods not in accordance with these Terms and to have accepted all the Goods. The company reserves the right to exchange or replace any product with a similar product should any product become discontinued, improved, modified and/or updated at any time during the course of this Contract. The Buyer shall take delivery of the Goods notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased PROVIDED that such discrepancy in the quantity shall not exceed 10% and the Price shall be adjusted pro rata to the discrepancy.
9. Limitation of Liability. The Company’s liability in contract, tort or otherwise arising out of the subject matter of the Contract shall not exceed £500.00 [five hundred pounds] and the Company shall under no circumstances be liable to the Buyer for any consequential, indirect or economic loss, loss of profits or damages with the exception of death or personal injury caused by proven negligence of the Company.. Claims of the Buyer including those that arrive from the defect of quantity, quality or condition of the Goods supplied (in which instance should be apparent on reasonable examination) must be made known in writing (which includes telefax but not email) to the Company within 14 working days of the arrival of the Goods at the destination to which they have been consigned to qualify for refund or replacement.
10. Brand Protection & Intellectual Property Rights. The Company is the sole licensee of all brands, logos, captions, slogans, patents, copyrights and trademarks associated with the Goods provided by the Company and are not to be used or reproduced without written permission of the Company. If the Company deems the Buyer to being careless with the intellectual property/brands and/or is not reasonably promoting the same in line with the Company’s marketing and promotional material and guidelines, the Company reserves the right to terminate the Contract. This Contract does not entitle the Buyer to sell the Goods through third party websites without prior written permission from the Company.
11. Manufacturers Recommended Retail Price. The Company will provide an RRP for all Goods it supplies. The Buyer should try to follow the Company’s recommended price structure at all times and should try not to alter the pricing structure without first conferring with the Company. The Company agrees that the Buyer may reduce or increase the RRP of any one of its Goods within 10% in accordance with and not to conflict with any free market price fixing as governed by English & European Law.
12. Distribution and/or Distributorship. Should the Buyer request to become an ‘appointed distributor’ and/or wish to have a distributorship and/or exclusive distribution, a separate distribution contract should be agreed and entered into with the Company.
13. Point of Sale Display & Marketing Materials. All point of sale display advertising and materials to include stands, posters, banners, leaflets, brochures, signs and any other display items with the exception of the Goods’ packaging, are provided ‘on loan’ and the Buyer agrees to maintain, on a weekly basis, the cleanliness of such and, to limit as far as reasonably possible the wear and tear of such display materials. The Buyer is made aware that should display materials not be maintained, the Buyer may be charged for replacement and the costs of installing replacements. All point of sale advertising and marketing materials remain the property of the Company unless otherwise agreed in writing.. The Company will provide reasonable assistance (the extent of such assistance to be entirely at the Company’s discretion) in merchandising at the Buyer’s request and may without notice attend the Buyer’s premises to maintain such displays on a regular basis.
14. Storage. Where possible the storage of the Goods should be indoors or in or under a dry, sheltered area, to prolong the life of the Goods. Where the Goods are stored outdoors, the Company recommends keeping lids on the containers and/or within the original packaging the Goods are supplied in to prevent the Goods becoming weathered. Where displayed outdoors and it is not possible or reasonably feasible to keep lids on containers due to potential customers needing to handle the Goods, it is recommended the open containers are kept out of windy, wet or extremely sunny areas, to prevent the Goods from weathering before usage. The Company cannot accept returns for Goods that have been damaged through being stored outside without such protection.
15. Force Majeure. If either party is subject to an event of Force Majeure, it shall notify the other and the first party’s obligations under these Terms shall be suspended in so far as is necessary until it notifies the other party of the end of such event of Force Majeure.
16. General. If any part of these Terms is found to be void or unenforceable by any Court of competent jurisdiction, such part shall be severed from these Terms which will otherwise remain in full force and effect. This Contract shall be governed by and interpreted according to English Law and the parties submit to the exclusive jurisdiction of the English Courts. ©2012 R.Perry
(EXAMPLES OF Force Majeur Events)
(a) Acts of God, including flood, earthquake, windstorm or other natural disaster;
(b) epidemic or pandemic;
(c) war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
(d) terrorist attack, civil war, civil commotion or riots;
(e) nuclear, chemical or biological contamination or sonic boom;
(f) any law or government order, rule, regulation or direction, or any action taken by a government or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary licence or consent;
(g) fire, explosion (other than in each case one caused by a breach of contract by, or assistance of, the party seeking to rely on this clause or companies in the same group as such party) or accidental damage;
(h) loss at sea;
(i) extreme adverse weather conditions;
(j) collapse of building structures, failure of plant machinery, machinery, computers or vehicles;
(k) any labour dispute, including strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as such party);
(l) non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
(m) interruption or failure of utility service, including but not limited to electric power, gas or water.