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TERMS AND CONDITIONS OF SALE

 

1.          INTERPRETATION

 

1.1        In these conditions:-

 

BUYER                          means the person(s), firm or company entering into the Contract to purchase the Goods from the Company;

 

COMPANY                     means Holloway Plastics Limited (company number 02108830) whose registered office is at Unit 6, Willenhall Lane Industrial Estate, Willenhall Lane, Bloxwich, Walsall, West Midlands, WS3 2XN;

 

CONDITIONS                 means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Company;

 

CONTRACT                    means any contract between the Company, and the Buyer for the sale of the Goods incorporating these Conditions;

 

DELIVERY

POINT                           means the place where delivery of the Goods is to take place;

 

GOODS                         means the goods (including any instalment of the Goods or any parts for them) which the Company is to supply in accordance with these Conditions;

 

WRITING                       includes telex, cable, facsimile transmission and comparable means of communication.

 

1.2        Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

 

1.3        The heading in these Conditions are for convenience only and shall not affect their interpretation.

 

2.          BASIS OF THE SALE

 

2.1        The Company shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Company which is accepted by the Buyer or any written order of the Buyer and which is accepted by the Company, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any quotation is accepted or purported to be accepted, or any such order is made or purported to be made by the Buyer.

 

[2.2       The Company’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in Writing.  In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.

 

[2.3       Any advice or recommendations given by the Company or its employees or agents to the Buyer or its employees or agents as to the storage application or use of the Goods which is not confirmed in Writing by the Company is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.]

 

[2.4       Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.]

 

3.          ORDERS AND SPECIFICATIONS

 

3.1        No order submitted by the Buyer shall be accepted or deemed to be accepted by the Company unless and until confirmed in writing by the [Company’s] authorised representative. [Where an order is made by reference to a sample, no order shall be deemed to be accepted by the Company unless and until in writing the Buyer confirms acceptance of the sample delivered by the Company.]

 

3.2        The Buyer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Company any necessary information relating to the Goods with a sufficient time to enable the Company to perform the Contract in accordance with its terms.

 

3.3        The quality, quantity and description of and any specification for the Goods shall be those set out in the Company’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Company).

 

3.4        If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Buyer’s specification.

 

3.5        The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or EC requirements or as the Goods are required to meet the relevant British Standards or the standards of some foreign country or, where the Goods are supplied to the Company’s specifications, which do not materially affect their quality or performance.

 

3.6        No order which has been accepted by the Company may be cancelled by the Buyer except with the agreement in Writing of the Company and on terms that the Buyer shall indemnify the Company in full against all loss (including loss of profit) costs (including the costs of all labour and material used) damages, charges and expenses incurred by the Company as a result of the cancellation.

 

4.          PRICE OF THE GOODS

 

4.1        The price of the Goods shall be the Company’s quoted price or where no price has been quoted or a quoted price is no longer valid the price listed in the Company’s published price list current at the date of acceptance.

 

4.2        All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer after which time they may be altered by the Company without giving notice to the Buyer.

 

[4.3       Except as otherwise stated under the terms of any quotation or in any price list of the Company and unless otherwise agreed in Writing between the Buyer and the Company, all prices are given by the Company on an ex works basis, and where the Company agrees to deliver the Goods otherwise than at the Company’s premises, the Buyer shall be liable to pay the Company’s charges for transport, packaging and insurance.]

 

[4.4       The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Company before the due payment date.]

 

4.5        The Company reserves the right by giving notice to any Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company [(such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instructions.]

 

4.6        The price is exclusive of any applicable value added tax.

 

5.          TERMS OF PAYMENT

 

5.1        Subject to any special terms agreed in Writing between the Company and the Buyer, the Company shall be entitled to invoice the Buyer for the price of the Goods when the manufacture of the Goods has been completed and the Buyer is notified that the Goods are ready for delivery or as soon as is the Company has previously so agreed in writing, the Goods are delivered to a place previously notified to the Company by the Buyer.

 

5.2        The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) within 30 days of the date of the Company’s invoice and the Company shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer.  The time of payment of the price shall be of the essence of the Contract.  Receipts for payment will be issued only upon request.

 

5.3        If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:-

 

5.3.1     suspend all or any further deliveries to the Buyer made under that or any other contract with the Buyer and in such event the Buyer shall not be released from its obligations to the Company under that or any other contract or cancel the Contract or any other contract with the Buyer and to claim damages from the Buyer for breach of contract;

 

5.3.2     appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Buyer); and

 

5.3.3     charge the Buyer interest (both before and after any judgement) on the amount unpaid from the due date, at the rate of 4 per cent per annum above National Westminster Bank base rate from time to time accruing daily, until payment in full is made.

 

5.4        The Company may without notice set off any sums from time to time owed to the Buyer in or towards the satisfaction of all and any liabilities of the Buyer to the Company whether or not under this Contract

 

6.          DELIVERY

 

6.1        Delivery of the Goods shall be made by the Buyer collecting the Goods at the Company’s premises after the Company has notified the Buyer that the Goods are ready for collection or if some other place for delivery is agreed by the Company delivering the Goods to that place.

 

6.2        Any dates for delivery of the Goods are approximate only and the Company shall not be liable for any delay in delivery of Goods howsoever caused.  Time for delivery shall not be of the essence unless previously agreed by the Company in Writing. Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

 

[6.3       Where delivery of the Goods is to be made by the Company in bulk, the Company reserves the right to deliver up to [5] per cent more or [5] per cent less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered] or [and 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.]

 

[6.4       Where the Goods are to be delivered in batches or instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more batches or instalments shall not entitle the Buyer to treat the Contract as a whole repudiated.]

 

6.5.    If the Company fails to delivery the Goods [(or any instalment)] for reason other than any cause beyond the Company’s reasonable control or the Buyer’s fault and the Company is accordingly liable to the Buyer, the Company’s liability shall be limited to the excess (if any) of the costs to the Buyer (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods.

 

6.6        If the Buyer fails to take delivery of the Goods or fails to give the Company adequate notice or delivery instructions at the time stated for delivery [(otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Company’s fault)] then without prejudice to any other right or remedy available to the Company the Company may:-

 

6.6.1     store the Goods until actual delivery and charge the Buyer for the reasonable costs of storage, including insurance; or

 

6.6.2     sell the Goods at the best price readily obtainable and after deducting all reasonable storage, insurance and selling costs account to the Buyer for the excess of the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

 

6.7        Claims for damage to or shortage of Goods must be registered with the Company by 12 noon on the next working day after receipt of the Goods.

 

7.          RISK AND PROPERTY

 

7.1        Risk or damage to or loss of the Goods shall pass on to the Buyer:

 

7.1.1      in the case of Goods to be delivered at the Company’s premises at the time when the Company notifies the Buyer that the Goods are available for collection; or

 

7.1.2      in the case of Goods to be delivered otherwise than at the Company’s premises at the time of delivery or if the Buyer wrongfully fails to take delivery of the Goods at the time when the Company has tendered delivery of the Goods.

 

7.2    Notwithstanding delivery and the passing of the risk in the Goods or any other provision of these Conditions the property in the Goods shall not pass to the Buyer until the Company has received in cash or cleared funds payment in full of the price of the Goods and all other Goods sold or agreed to be sold by the Company to the Buyer under any Contract for which payment is then due.

 

7.3        Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Company’s agent or bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Company’s property.  Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall have a fiduciary duty to the Company to account for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.

 

7.4        Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Company shall be entitled at any time to require the Buyer to deliver the Goods to the Company and if the Buyer fails to do so forthwith to enter upon the premises of the Buyer or any third party where the Goods are sold and repossess the Goods [ and for that purpose the Buyer hereby authorises and licences the Company, its officers, employees and agents and to enter upon any land or building upon which the Goods are situated to recover those Goods.]

 

7.5        The Buyer shall not be entitled to or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Buyer does so all moneys owing by the Buyer to the Company shall, without prejudice to any other right or remedy of the Company, forthwith become due and payable.

 

8.          WARRANTIES AND LIABILITIES

 

8.1.    Subject to the Conditions set out below, the Company warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of six months from the date of their initial use or six months from delivery whichever is first to expire.

 

8.2        The above warranty is given by the Company subject to the following conditions:-

 

8.2.1      the Company shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;

 

8.2.2      the Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company’s approval;

 

8.2.3      if the total price for the Goods has not been paid by the due date for payment, the Company shall be under no liability under the above warranty, or any other warranty, condition or guarantee until the total price for the Goods has been paid;

 

8.2.4      the above warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.

 

8.2.5      Such liability will be limited to the cost of replacing any Goods defective under this warranty after receiving notice from the Buyer that such Goods are defective or after the Company has received re-delivery of the Goods.

 

8.2.6      The Company does not warrant that the Goods are fit for any particular purpose of the Buyer.

 

8.3        Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law and the warranty referred to at 8.1 and 8.2 above replaces any conditions or any other terms implied by statute or common law unless the Goods are sold to a person dealing as a consumer in the meaning of the Unfair Contract Terms Act 1977.

 

8.4        Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions.

 

[8.5       Any claim by the Buyer which is based on any defect in the quality or conditions of the Goods or their failure to correspond with specification shall, whether or not delivery is refused by the Buyer, be notified to the Company within 7 days from the date of delivery, or where the defect or failure was not apparent on reasonable inspection, within a reasonable time after discovery of the defect or failure.  If delivery is not refused, and the Buyer does not notify the Company in accordance with this Condition, the Buyer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods has been delivered in accordance with the Contract.]

 

8.6        Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Conditions, the Company shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Company shall have no further liability to the Buyer.

 

8.7        Except in respect of death, personal injury caused by the Company’s negligence, the Company shall not be liable to the Buyer by reason of any representation for any implied warranty, condition or other term or any duty at common law or under the express terms of the Contract  any consequential or loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for [consequential] compensation whatsoever (whether caused by the Company, its employees and agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer and the entire liability of the Company under or in connection with the contract shall not exceed the price of the Goods except as expressly provided in these conditions.

 

8.8        The Company shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company's reasonable control.  Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company's reasonable control:

 

8.8.1      Act of God, explosion, flood, tempest, fire or accident;

 

8.8.2      War or threat of war, sabotage, insurrection, civil disturbance or requisition;

 

8.8.3      Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

 

8.8.4      Import or export regulations or embargoes;

 

8.8.5      Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);

 

8.8.6      Difficulties in obtaining raw materials, labour, fuel, parts or machinery;

 

8.8.7      Power failure or breakdown in machinery.

 

9.          INSOLVENCY OF BUYER

 

9.1        This clause applies if:

 

9.1.1      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 a company) goes into liquidation, otherwise than for the purpose of amalgamation or reconstruction; or

 

9.1.2      an encumbrancer takes possession, or a receiver is appointed, of the Buyer's undertaking or any of its property or assets; or

 

9.1.3      the Buyer ceases, or threatens to cease, to carry on business; or

 

9.1.4      the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

 

9.2        If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered, but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

 

10.        GENERAL

 

10.1       The Buyer shall not be entitled to assign the whole or any part of its rights and/or obligations under the Contract without the prior written consent of the Company.

 

10.2       Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant on this provision to the party giving the notice.  A notice shall be deemed to have been received, in the case of a facsimile, upon transmission and, in the case of a letter, forty eight hours after posting.  In proving service by letter, it shall be sufficient to show that the envelope containing the notice was properly addressed and stamped and duly posted.  In proving service by facsimile transmission, it shall be necessary only to produce a report confirming uninterrupted transmission to the recipient.

 

10.3       No waiver by the Company of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

 

10.4       If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby unless such provision goes to the root of the Contract.

 

10.5       The Conditions shall constitute the entire agreement in relation to the sale of the Goods and no modification or waiver thereof shall be valid unless made in Writing expressly for the purpose and signed by an authorised officer of the Seller and of the Buyer.

 

10.6       The parties to these conditions do not intend that any term of the 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.

 

10.7       The Contract shall be governed by the laws of England and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.