BETAFENCE LIMITED
TERMS AND CONDITIONS OF SALE
1. DEFINITIONS
(1) The definitions and rules of interpretation in this condition apply in these conditions.
Buyer: the person, firm or company who purchases the Goods from the Seller
Conditions: These conditions of sale
Contract: any contract between the Seller and the Buyer for the sale and purchase of the Goods, incorporating these Conditions
Delivery Point: the Buyer’s address or the despatch address (if different) stated on the Seller’s order acknowledgement.
Goods: goods or services (including any instalment of the Goods) which the Seller is to supply in accordance with these Conditions.
Group: in relation to a company (wherever incorporated), that company, any company of which it is a Subsidiary (its holding company) and any other Subsidiaries of any such holding company; and each company in a Group is a member of the Group.
Seller: Betafence Limited (Company Number: 00277121)
Subsidiary: in relation to a company wherever incorporated (a holding company) means a “subsidiary” as defined in Section 1159 of the Companies Act 2006 and any other company which is a subsidiary (as so defined) of a company which is itself a subsidiary of such holding company.
Unless the context otherwise requires, the application of the definition of Subsidiary to any company at any time will apply to the company as it is at that time.
Warranty: means the warranty set out in clause 4(1)
(2) A reference to a particular law or statute is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
(3) Words in the singular include the plural and in the plural include the singular.
(4) A reference to one gender includes a reference to the other genders.
(5) Condition headings do not affect the interpretation of these conditions.
2. SELLER’S CONDITIONS TO PREVAIL
(1) Unless otherwise agreed in writing by the Seller these Conditions which supersede any earlier sets of Conditions appearing in the Seller’s catalogue or elsewhere shall override any terms or conditions stipulated incorporated or referred to by the Buyer whether in the order or in any negotiations preceding the formation of the contract.
(2) In the event of the Buyer’s conditions of purchase containing a clause which is inconsistent with or which purports to exclude the Seller’s conditions or which purports to provide that the delivery of any goods or the commencement of any work by the Seller on a Contract for the Buyer shall constitute acceptance of the Buyer’s conditions such clause or clauses shall be of no effect and the Seller’s Conditions of Sale shall prevail.
(3) The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in these conditions shall exclude or limit the Seller’s liability for fraudulent misrepresentation.
(4) Acceptance of Goods from the Seller shall be conclusive evidence before any court or Arbitrator that these terms alone apply to the supply by the Seller of the Goods.
(5) For the purpose of these terms writing or written includes any means of communication referred to in clause 27(1).
3. ACCEPTANCE OF ORDERS
(1) Each order or acceptance of a quotation for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy Goods subject to these Conditions.
(2) All quotations are made without creating any Contract, are not legally binding and are therefore subject to confirmation in writing by the Seller on receipt of the order from the Buyer. Any quotation is valid for a period of fourteen days only from its date, provided that the Seller has not previously withdrawn it.
(3) Contracts made by the Seller’s agents or representatives are only valid and binding on the Seller when confirmed in writing by the Seller.
4. WARRANTY
(1) The Seller warrants that the Goods shall at the time of delivery be within the normal limits and tolerance levels of industrial quality and be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
(2) If any Goods do not conform to the Warranty the Seller will at its option:-
(a) replace the Goods found not to conform to the Warranty;
(b) take such steps as the Seller deems necessary to bring the Goods into a state where they are free from such defects; or
(c) take back the Goods found not to conform to the Warranty and refund the appropriate part of the purchase price;
provided that:-
(i) the liability of the Seller shall in no event exceed the purchase price of the Goods unless the Seller is liable for death or personal injury arising from negligence of itself or its servants or agents or the Seller is liable under the Consumer Protection Act 1987.
(ii) performance of any one of the above options (as limited by sub-clause (i) above) shall constitute an entire discharge of the Seller’s liability under the Warranty.
(3) The Seller shall use reasonable endeavours to provide services in accordance in all material respects with those agreed in writing with the Buyer.
(4) The Seller shall use reasonable endeavours to meet any performance dates agreed in writing with the Buyer, but any such dates shall be estimates only and time shall not be of the essence.
(5) The Seller shall indemnify the Buyer against all or any awards losses damages costs and expenses suffered or incurred by the Buyer in respect of Product Liability claims arising in relation to Goods supplied by the Seller to the Buyer to the extent only that the Consumer Protection Act 1987 (or any re-enactment or amendment thereof) imposes such liability upon the Seller.
(6) The Warranty and forgoing indemnity are given conditional upon:-
(a) the Buyer giving written notice to the Seller of the alleged defect or any claim alleging defect in the Goods such notice to be received by the Seller within fourteen days of the time when the Buyer discovers or ought to have discovered the defect or within fourteen days of receiving notice of such claim and in any event within two months of delivery of the Goods;
(b) the Buyer affording the Seller a reasonable opportunity to inspect the Goods and if so requested by the Seller returning the allegedly defective Goods to the Seller’s works carriage pre-paid for inspection to take place there;
(c) the Buyer making no further use of the Goods that are alleged to be defective after the time at which the Buyer discovers or ought to have discovered that they are defective:
(d) the Buyer having paid in full the price of the Goods and any additional charges costs and expenses payable by the Buyer in respect of the Goods;
(e) the Goods having where appropriate been correctly installed and used;
(f) the Buyer not admitting liability or entering into such negotiations or proceedings relating to alleged defects or any claim alleging defects in the Goods without entering into full consultation with the Seller and giving the Seller notice of all communications made by the Buyer in respect of such claims to the claimant;
(g) the defect in the Goods not being attributable to the design drawing specification or other instruction given to the Seller by the Buyer in respect of the Goods; and
(h) the defect not being wholly attributable to the design of the product in which the Goods in question had been comprised.
(7) The Buyer shall indemnify the Seller against all or any awards losses damages costs and expenses howsoever arising suffered or incurred by the Seller in the event that the conditions (a) to (h) of sub-clause (6) of this contract are not complied with.
5. EXCLUSIONS
(1) Save as provided in Clause 4 hereof and in Sections 12 to 15 of the Sale of Goods Act 1979 and Sections 13 to 15 of the Supply of Goods and Services Act 1982:-
(a) all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
(b) no guarantee warranty condition description or representation on the part of the Seller is given or implied by these Conditions nor is any guarantee warranty conditions description or representation to be taken to have been given or implied from anything said or written in the negotiations between the parties or their representatives prior to entering into a Contract and any statutory or other guarantee warranty condition or description express or implied as to the state quality or fitness of the Goods for any particular purpose or for use under any specific conditions is hereby expressly excluded to the fullest extent permitted by law.
(c) the Seller shall be under no liability for any loss or damage howsoever caused which arises in respect of the Buyer’s liability to any third party whatsoever;
(d) the Seller shall be under no liability for any loss or damage howsoever caused which arises in respect of indirect or consequential loss or damage;
(e) nothing in these conditions excludes or limits the liability of the Seller:
(i) for death or personal injury caused by the Seller’s negligence; or
(ii) under section 3(3), Consumer Protection Act 1987; or
(iii) for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
(iv) for fraud or fraudulent misrepresentation.
(f) without prejudice to any other term of these Conditions the Seller shall be under no liability for any loss or damage of whatsoever kind howsoever caused or arising unless the same be due to the wilful act omission or default of the Seller.
(2) Without prejudice to the generality of sub-clause (1) hereof all recommendations and advice given by or on behalf of the Seller to the Buyer as to the methods of storing applying or using the Goods the purpose to which the Goods may be applied and the suitability of using the Goods in any manufacturing process or in conjunction with any other materials are given without liability on the part of the Seller its servants or agents.
(3) Notwithstanding the provisions of sub-clauses (1) and (2) hereof in the event that the Seller is found liable for any loss or damage that liability shall in no event exceed the purchase price of the Goods or in the case of services the fees paid for such services.
6. HEALTH AND SAFETY
The Buyer will on or before delivery of the Goods if so requested by the Seller enter into a written undertaking to take such steps as may be specified to the Buyer by the Seller and set out in such undertaking relating to the safe and proper use of the Goods without risk to health. The Buyer shall indemnify the Seller in respect of any liability monetary penalty or fine in respect of or in connection with the Goods incurred by the Seller under the Health and Safety at Work Act 1974 or any statutory modification or re-enactment thereof or any regulations orders or directions made thereunder.
7. SAMPLES
Notwithstanding that a sample of the Goods be exhibited to and inspected by the Buyer such sample is so exhibited and inspected solely to enable the Buyer to judge for himself the quality of the bulk and not so as to constitute a sale by sample. The Buyer shall take the Goods at his own risk as to their corresponding with the said sample and subject to the normal variation between bulk and sample accepted by the trade.
8. INSTALMENT CONTRACTS
Where Goods are delivered by instalments each instalment shall be deemed to be a separate Contract (and in this clause is referred to as an “Instalment Contract”). If any of the following:-
(a) failure to deliver
(b) a claim by the Buyer
(c) cancellation or termination
applies to one or more Instalment Contract(s) the Buyer shall not be entitled to repudiate or cancel any other Instalment Contract.
9. PRICE
All orders are accepted and quotations made on the basis that materials and the Goods will be charged at the prices ruling at the date of despatch and unless specified by the Seller in writing such prices shall include the cost of delivery to the Delivery Point (provided it is in the UK) and the Seller’s standard packaging. Returnable items (such as reels) may be charged for if not returned to the Seller. All prices are subject to VAT and all or any other taxes levies or duties chargeable at the rates applicable at the date of invoice.
10. PAYMENT
(1) Accounts are due at the end of the month following despatch of the Goods from the Seller’s works unless specified otherwise by the Seller in writing. Prompt payment is a condition precedent to future deliveries.
(2) Payment of the price for the Goods shall be settled in the currency of invoice.
(3) Time for payment shall be of the essence.
(4) The Seller shall be entitled to interest (unless waived in whole or in part in writing by the Seller) on the amount of any unpaid accounts or part thereof from the due date for the payment to the actual date or dates when the Seller receives payment in cleared funds such interest to be at the annual rate of 5% above base lending rate for the time being in force of National Westminster Bank PLC with a minimum of £6 per centum per annum and the Buyer shall reimburse the Seller all costs and expenses incurred in the collection of any overdue monies.
(5) The Seller may before executing or delivering an order or any instalment thereof make it a requirement that credit insurance is obtained by the Seller in respect of its dealings or proposed dealings with the Buyer to the Seller’s satisfaction and/or require the Buyer to lodge security approved by the Seller for the payment of all amounts due or to become due under the contract or in the case of instalments of sums due in respect of future agreed instalments or at the Seller’s option require the Buyer in some other manner to prove to the satisfaction of the Seller that it will fulfil all its obligations and make payment on the due date or dates. Should the Buyer fail or refuse to provide such security or such proof to satisfy the Seller in this particular the Seller reserves the right to suspend forthwith all deliveries until such security is lodged and (or alternatively) if the Buyer continues to fail or refuses to provide such security or provide such proof the Seller may at any time thereafter terminate the contract insofar as any Goods remain to be delivered thereunder without notice and without incurring liability of any kind.
(6) The Seller shall be entitled to recover from the Buyer any loss suffered by or caused to the Seller by reason of the Seller suspending any delivery or deliveries of Goods and/or cancelling the contract insofar as any Goods remain to be delivered in accordance with sub-clause 5 hereof or in respect of any other loss.
(7) No payment shall be deemed to have been received until the Seller has received cleared funds.
(8) All payments payable to the Seller under the Contract shall become due immediately on its termination despite any other provision.
(9) The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless agreed with the Seller in writing.
11. LIEN
The Seller shall in respect of all unpaid debts due from the Buyer under the same or any other contract have a general lien on all goods and property of the Buyer in its possession (although such goods or some of them may have been paid for) and shall after the expiration of fourteen days notice to the Buyer be entitled to dispose of such goods and property as it deems fit and apply the proceeds towards such debts.
12. DEFAULT INSOLVENCY BANKRUPTCY ETC OF BUYER
If monies due from the Buyer to the Seller shall become overdue or if the Buyer shall make default in or commit a breach of the contract or of any other of his obligations to the Seller or if any distress or execution shall be levied upon the Buyer’s property or assets or if the Buyer shall make or offer to make any arrangements or composition with creditors or commit any act of bankruptcy or if any petition or receiving order in bankruptcy shall be presented or made against him or if the Buyer is a limited company and any resolution or petition to wind up such company’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented or if a receiver of such company’s undertaking property or assets or any part thereof shall be appointed or if the Seller cannot obtain or retain credit insurance against the Buyer to the Seller’s satisfaction the Seller shall have the right forthwith to determine any contract then subsisting and upon written notice of such determination being posted to the Buyer’s last known address any subsisting contracts shall be deemed to have been determined without prejudice to any claim or right the Seller may otherwise make or exercise.
13. DELIVERY
(1) Delivery shall be deemed to be complete in the case of services when the Buyer pays for (or if earlier uses) the Goods.
(2) Delivery shall be deemed to be complete in the case of Goods other than services:-
(a) in the case of transport arranged by the Seller – at the moment of arrival of the Goods at the Delivery Point and before the commencement of unloading, or
(b) in cases where the Contract is for the installation of the Goods – when the Seller notifies the Buyer in writing (whether by invoice or otherwise) that Seller’s installation obligations are complete, or
(c) in all other cases – when loading of the Goods on to the carrier is complete.
(3) For the avoidance of doubt the Buyer shall ensure that there is good and sufficient access and unloading facilities at the agreed point of delivery and that the unloading of the Goods is the responsibility of the Buyer.
(4) Any time or date named by the Seller for delivery is given and intended as an estimate only and the Seller shall not be liable to make good any damage or loss arising directly or indirectly out of delay in delivery and the Buyer shall not be entitled to rescind the contract for late delivery whether or not such delay in delivery is caused by the fault of the Seller. Where no time or date are specified, delivery shall be within a reasonable time.
(5) If for any reason the Buyer is unable to accept delivery of the Goods at the time when the Goods are due and ready for delivery the Seller shall if its storage facilities permit store the Goods and the Buyer shall be liable to the Seller for the reasonable cost (including insurance) of its so doing.
(6) Without prejudice to clause 13(5) above the Seller may require the Buyer by notice in writing to accept delivery of the Goods within a period of fourteen days from the date of the notice. If the Buyer is unable or fails or refuses to do so or is unable or fails or refuses to provide safe and adequate access or unloading facilities or to unload at the Delivery Point within such time the Seller may terminate the contract in respect of such portion of the Goods as are by reason of the inability failure or refusal of the Buyer aforesaid not unloaded. In those circumstances the Seller shall be entitled to recover from the Buyer any loss sustained by or caused to the Seller by reason of such failure and may suspend any further deliveries or terminate the Contract insofar as any Goods remain to be delivered thereunder. This provision shall be without prejudice to any other claim which the Seller may have in respect of the Buyer’s failure to take delivery at the appropriate date.
(7) The Seller shall not be liable for any non-delivery of Goods (even if caused by the Seller’s negligence) unless the Buyer gives written notice to the Seller of the non-delivery within fourteen days of the date when the Goods would in the ordinary course of events have been received.
(8) Any liability of the Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
(9) The Seller shall be deemed to have fulfilled the contract by delivery of a quantity within ten per cent either way of the quantity ordered and the Buyer shall pay at the contract rate for the quantity actually delivered.
(10) The Seller shall not be liable for a failure to deliver Goods because the Buyer has not provided appropriate instructions, documents, licences or authorisation or has provided incorrect information in respect of any premises identified, or because the premises are inaccessible.
(11) Where Goods are delivered to an address nominated by the Buyer, the Buyer shall be liable and responsible for and indemnify the Seller against injury to persons or damage to property resulting therefrom and occasioned at the address and the Buyer shall provide unimpeded access to the premises and adequate labour and equipment for unloading the Goods.
(12) Throughout the period of any Contract, the Buyer shall afford the Seller, its personnel, servants and agents such access to the Buyer’s premises and information, records and other material relevant to such contract as the Seller may require. Furthermore the Buyer shall:-
(a) make available such working space and facilities at its premises as the Seller may reasonably require
(b) make available appropriate personnel to liaise with the Seller
(c) secure and otherwise keep safe all or any property of the Seller
14. ASSIGNMENT AND SUB-CONTRACTING
(1) The Seller may assign or sub-contract the Contract or any part of it to any person, firm or company.
(2) The Buyer shall not be entitled to assign or sub-contract the Contract or any part of it without the prior written consent of the Seller.
15. PATENTS TRADEMARKS ETC
The Buyer shall indemnify the Seller against all damages penalties costs and expenses to which the Seller may become liable as a result of the work done in accordance with the Buyer’s specifications or instructions which involves the infringement of any letters patent trade mark or registered design or which constitutes the tort of passing off.
16. PATTERNS DRAWINGS DIES ETC
All patterns drawings dies moulds specifications and other such items supplied by the Seller to the Buyer shall remain the property of the Seller and shall be returned to the Seller on request or completion of the Contract in good order and condition subject to fair wear and tear. Should the Buyer fail so to return any of such items then the Buyer shall be liable for any loss or expense thereby suffered or incurred by the Seller (including the full cost of replacements) who shall be entitled to set off the same against any sum payable by the Seller to the Buyer.
17. FORCE MAJEURE
(1) The Seller shall have no liability to the Buyer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lockouts, or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. .
(2) Deliveries may be wholly or partially suspended and the time of such suspension added to the original contract in the event of a stoppage delay or interruption of work in the establishment of the Seller during the delivery period as a result of any of the causes set out in sub-clause 17(1) or any cause whatsoever beyond the control of the Seller.
18. PARTIAL PERFORMANCE
In the case of partial performance of the contract by the Seller it shall be entitled to a quantum meruit in respect of all work done by it and costs expenses and charges incurred by it without prejudice to its rights should the non-completion of the contract be occasioned by the Buyer.
19. RISK AND DAMAGE IN TRANSIT
(1) The Goods or any of them the subject of the contract shall be at the risk of the Buyer upon delivery.
(2) If the Seller undertakes delivery of the Goods it shall not be liable:-
(a) for any loss damage deviation delay or detention of the Goods in the course of transit or for misdelivery or short delivery unless the Buyer gives to the Seller and to the carrier within three days of receipt of the Goods a written notice of the Buyer’s complaint;
(b) for non delivery or non arrival of the whole of the consignment of the Goods or of any separate package unless the Buyer shall give to the Seller and to the carrier a written notice thereof within fourteen days of the date of notification of the despatch of the Goods.
(3) For the purposes of clauses 4 and 19 time shall be of the essence.
(4) Notwithstanding and without prejudice to clause 19(2) above if Goods delivered to the Buyer shall have been processed manufactured and/or incorporated and/or admixed with any other Goods or have been sold by the Buyer or the Buyer does not permit the Seller to examine the Goods or the Buyer alters the Goods in any way the Buyer shall be deemed to have accepted such Goods as being in all respects in accordance with the contract.
20. TITLE/OWNERSHIP
(1) Ownership of the Goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Seller from the Buyer on any account.
(2) Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain clearly identifiable as the Seller's property;
(b) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition;
(d) not mix the Goods with other goods or alter the Goods in any way;
(e) keep the Goods insured for an amount at least equal to the price payable to the Seller and any proceeds of the insurance policy shall be held on trust for the Seller in a separate account in the joint names of the Seller and the Buyer. The Buyer shall not mix the insurance proceeds with any other money or pay the proceeds into an overdrawn bank account. The Buyer shall account to the Seller for the proceeds accordingly and make good any shortfall in the amount due to the Seller.
(3) The Buyer's right to possession of the Goods shall terminate immediately if:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(b) the Buyer passes a resolution or makes a determination for it to be wound up (without a declaration of solvency except for the purposes of amalgamation or reconstruction, the terms of which have been previously approved in writing by the other party); or
(c) an incumbrancer takes possession, or a receiver, manager or administrative receiver is appointed, of the whole or any part of the Buyer’s assets; or
(d) the Buyer encumbers or in any way charges any of the Goods; or
(e) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it; or
(f) any arrangement, compromise or composition in satisfaction of the Buyer’s debts is proposed or entered into; or
(g) the Buyer ceases or suspends payment of any of its debts, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(h) any event analogous to those described in sub clauses 20(3)(a) to 20(3)(g) occurs in relation to the Buyer in any jurisdiction in which the Buyer is incorporated, resident or carries on business; or
(i) the Buyer ceases or threatens to cease to trade; or
(j) the Buyer fails to observe or perform any of its obligations under the Contract or any other contract between the Seller and the Buyer; or
(k) there is a failure to make payments to the Seller pursuant to any Contract;
(4) The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
(5) The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may in the opinion of the Seller be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
(6) Where the Seller is unable to determine whether any Goods are the goods in respect of which the Seller's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.
(7) On termination of the Contract, howsoever caused, the Seller's (but not the Buyer's) rights contained in this clause 20 shall remain in effect.
21. PACKAGING
All pallets stillages crates reels and other packaging specified as returnable will be charged for and credited if returned in good condition within twenty eight days. No credit will be given for packaging claimed to be returned unless the Buyer can produce the Seller’s receipt therefore clearly identifying the items returned.
22. VARIATION OF TERMS
Any variation of the terms and conditions of any contract shall become binding only if confirmed in writing by the Seller and the Buyer.
23. THE BETAFENCE GROUP
The Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of the Group of which it forms part provided that any act or omission of any such other member shall be deemed to be the act or omission of the Seller.
24. INTERNATIONAL
(1) Where Goods are to be transported outside the United Kingdom it is a condition of all such contracts that:
(a) the Buyer shall hold whatever import licence and/or exchange permit and/or other official permission as is necessary to import and pay for the Goods in the currency contracted for and invoiced.
(b) the Buyer’s order gives the reference number and expiry date of any such official permit or states that none is required.
(c) the Buyer shall supply complete particulars for the declarations to appear on the Consular invoices. If the Buyer fails to supply sufficient particulars the Seller shall not be responsible for possible fines or differences in rates of duties or other consequences arising from a faulty declaration. Consular fees are for the Buyer’s account.
(d) any United Kingdom authorisation which is or may be required to process and export the finished Goods has been or will be granted to the Seller or Seller’s agent or sub-contractor.
(e) any insurance cover effected by the Seller hereunder is subject to the performance and observance of certain conditions obligations and procedures imposed by the insurers the performance of which and the compliance with which will be a condition precedent to the payment of any claim by the insurers. It shall be the duty of the Buyer to acquaint itself with such conditions obligations and procedures and to comply or procure the compliance with the same in full.
(f) the Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
(2) The price basis and the terms of sale shown on the Order Acknowledgement are subject to Incoterms 2000 (or any subsequently updated version) as issued by the International Chamber of Commerce.
(3) War Risks. In times of war or political disturbances of revolutionary or any other character whether in the country of origin of transit or of destination the Seller has the right to cover war risks without previous reference to the Buyer and the extra premium thus incurred is to be paid by the Buyer.
(4) Statutory Implied Conditions. Without prejudice to the generality of clauses 4 and 5 above or their application to export contracts the implied conditions under warranties contained in Sections 12 to 15 of the Sale of Goods Act 1979 are hereby excluded from all export contracts made by the Seller.
(5) Payment. Where payment is to be made for export orders from outside the United Kingdom this shall be in agreed currency (and in the absence of agreement in sterling) by means of a confirmed irrevocable Banker’s Commercial Credit or other appropriate form of credit as agreed by the Seller. Any losses due to the fluctuations in the rate of exchange shall be for the account of the Buyer.
25. GENERAL
(1) Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
(2) If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
(3) Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
(4) Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
(5) The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
26. LAW AND JURISDICTION
(1) This agreement shall be governed by and construed in all respects in accordance with the laws of England and Wales.
(2) Subject to clause 26.3, the parties submit to the exclusive jurisdiction of the courts of England and Wales and agree that in respect of proceedings in England and Wales and in any other jurisdiction, process may be served on either of them in the manner specified for notices in clause 27.
(3) Nothing in this clause 26 shall limit the right of the Supplier to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
(4) The rights set out in this clause 26 are in addition to any other manner of service permitted by law at the time when service is made.
27. NOTICES
(1) Any notice or other communication to be given in respect of a Contract or pursuant to these Conditions shall be in writing and in the English language and may be delivered by hand or sent by pre-paid first-class post or by facsimile transmission or electronic communication (provided that in the case of facsimile transmission an error free transmission report has been received by the sender and in the case of an electronic communication receipt has been acknowledged by the recipient).
(2) Any notice or document shall be deemed served:-
(a) If delivered by hand, at the time of delivery unless delivered after 5.00pm in which case they shall be given on the next Working Day (for the purposes of this clause 27, Working Day shall mean the day (other than Saturday or Sunday) on which the banks are ordinarily open for business in the City of London);
(b) If posted, 48 hours after posting; and
(c) If sent by fax at the time of transmission printed on the transmission confirmation sheet provided that an error free transmission report has been received by the sender and if the time of transmission is after 5.00pm on a Working Day or at any time on a day that is not a Working Day the notice shall be deemed to have been received at 9.00am on the next Working Day.
(d) If sent by email at the time of acknowledgment of receipt save that if the acknowledgment is after 5.00pm on a Working Day or at any time on a day that is not a Working Day the notice shall be deemed to have been received at 9.00 am on the next Working Day.
28. SURVIVORSHIP
Any of the provisions of this agreement that are expressed to take effect in whole or in part on or after termination, or are capable of having effect after termination, shall remain in full force and effect despite termination.
29. PAYMENT TO THE CUSTOMER
Any and all rights which the Buyer may have to rebates, payments, or repayments from the Seller (including product and brand support payments) shall cease upon the Buyer becoming subject to any of the events listed in sub clauses 20.3(a) to 20.3(k) above.