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Conditions of Sale

1. Interpretation
1.1
In these Conditions: “Buyer” means the person whose order for Goods is accepted by the Seller “Goods” means goods (including any instalment of goods or any parts for them) which the Seller is to supply in accordance with these conditions “Seller” means J P Lennard Limited whose registered office is at Swift Point, Rugby, Warwickshire “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 Seller “Contract” means the contract for the purchase and sale of the Goods “Writing” includes telex, cable and facsimile transmission
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
Paragraph headings of these Conditions shall not affect their interpretation.
2. Basis of the sale
2.1
The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written order of the Buyer which is accepted by the Seller, subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions.
2.2
No variation to these Conditions shall be binding unless agreed in Writing between the Buyer and the Seller.
2.3
The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller 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.
2.4
Any advice or recommendation given by the Seller 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 Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5
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 Seller shall be subject to correction without any liability on the part of the Seller.
3. Orders and Specifications
3.1
The Seller reserves the right to require any order to be confirmed in Writing.
3.2
The Seller reserves the right to demand before any order is accepted the payment by the Buyer of a deposit where the Goods ordered are to be produced adapted designed or altered to a specification provided by the Buyer.
3.3
The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s catalogue and (where appropriate) the Buyer’s order (if accepted by the Seller).
3.4
The Seller 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 requirements or which do not materially affect their quality or performance.
3.5
No order which has been accepted by the Seller may be cancelled by the Buyer (except with the agreement in Writing of the Seller and on terms as the Seller shall require) (Provided that if the Goods have not been altered, designed, produced or adapted to the Buyer’s stated requirements, any order may be cancelled subject to the payment by the Buyer of up to 25 per cent of the order price). All invoices and delivery references must be quoted.
3.6
Any goods returned for credit will only be accepted if accompanied by invoice and delivery references. Where Goods have been correctly supplied they will only be accepted back if unused and in the same condition (including all packaging) in which they were supplied. In such cases a handling charge of up to 25 per cent of the Purchase Price shall apply.
4. Price of Goods
4.1
The price of the Goods quoted in the Seller’s current catalogue shall be valid until the date therein.
4.2
Notwithstanding 4.1 the Seller reserves the right to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to:
(a)
any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, material or other costs of manufacture).
(b)
any change in delivery dates, quantities or specifications for the Goods requested by the Buyer, or
(c)
any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3(a)
All prices are ex-works and where the Seller agrees to deliver the Goods to the Buyer’s Premises or any other location, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance save that the Seller shall bear such costs and charges where the total price of the Goods ordered and delivered exceeds £450 nett in the case of deliveries to anywhere in the UK mainland or £1000.00 nett elsewhere in the UK. In such cases, delivery will be by carrier without guaranteed delivery times.
4.3(b)
Carriage will be charged on all product codes marked
4.4 The Seller will on request arrange “next day” delivery if required by the Buyer, subject to:
(a)
the existence of sufficient stocks
(b)
the payment by the Buyer of all delivery transport and insurance charges and
(c)
where required by the Seller, payment for the Goods and carriage on or before delivery.
4.5
The price is exclusive of value added tax which the Buyer shall be liable to pay.
5. Terms of payment
5.1
The Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time
after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2
The Buyer shall pay the price of the Goods together with any transport charges payable within 30 days of the date of the Seller’s invoice, 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 Seller, the Seller shall be entitled to:
(a)
cancel the contract or suspend any further deliveries to the Buyer;
(b)
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 Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
(c)
charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of two per cent per annum above Barclays Bank base rate from time to time.
6. Delivery
6.1
Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2
Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing.
6.3
Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller 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 instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4
If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods over the price of the Goods.
6.5
If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate 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 Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
(a)
store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage: or
(b)
sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over or charge the Buyer for any shortfall below the price under the Contract
6.6
Where the Seller agrees to arrange delivery of the Goods to the Buyer the carrier shall be deemed to be the Buyer’s agent.
7. Risk and property
7.1
Risk of damage to or loss of the Goods shall pass to the Buyer:
(a)
when the Seller notifies the Buyer that the Goods are available for collection: or
(b)
in the case of Goods to be delivered to the Buyer’s premises or otherwise at the time when the Seller has tendered delivery of the Goods to the carrier.
7.2
Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3
Until such time as property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall (at no cost to the Seller) keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured against “all risks” and identified as the Seller’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 account to the Seller 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 moneys 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 Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. Upon being requested to deliver up the Goods to the Seller, the right of the Buyer to resell or use the Goods in the ordinary course of its business shall cease.
7.5
The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8. Warranties and liability
8.1
Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will perform substantially in accordance with any written specification for the Goods. Provided that this warranty does not extend to parts, materials or equipment not manufactured by the Seller, 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 Seller.
8.2
The above warranty is given to the Seller subject to the following conditions:
(a)
the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
(b)
the Seller 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 Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval;
(c)
the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
8.3
Subject as expressly provided in these Conditions, and except where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4
Where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979) 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 condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller 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 Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had 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 Seller in accordance with these Conditions, he Seller 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 Seller shall have no further liability to the Buyer.
8.7
Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the contract for the supply of the Goods or the use or resale of the Goods by the Buyer, except as expressly provided in these Conditions.
8.8
The Seller 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 Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party) shall be regarded as causes beyond the Seller’s reasonable control.
9. Insolvency of buyer
9.1
This clause applies if:
(a)
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
(b)
an encumbrancer takes possession, or a receiver is appointed, of any of the property or asserts of the Buyer: or
(c)
the Buyer ceases, or threatens to cease, to carry on business: or
(d)
the Seller 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 Seller, the Seller 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
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 times have been notified pursuant to its provision to the party giving the notice.
10.2
No waiver by the Seller 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.
10.3
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 provisions in question shall not be affected thereby.
10.4
Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of the Institute of Arbitrators.
10.5
The Contract shall be governed by the laws of England in all respects.