GENERAL TERMS AND CONDITIONS OF SALE
OF AGRALAN LIMITED.
In these conditions the following expressions shall have the following meanings: -
(1) “The Company” Agralan Limited and also where the context so permits its assigns and any sub-contractors for the company;
(2) “Goods” means the articles or things or any of them described in the Contract between the Company and the Buyer for the sale or supply of goods;
(3) “The Contract” means the Company’s Quotation for the sale or supply of the Goods and any document referred to therein, these Conditions of Sale, the Buyer’s order for the Goods and the Company’s acknowledgement thereof and if there shall be any inconsistency between the documents comprising the Contract they shall have precedence in the order herein listed;
(4) “The Buyer” means the person, firm or company with whom the Contract is made by the Company whether directly of indirectly through an agent or factor who is acting for, or instructed by, or whose actions are ratified by such person, firm or company in writing, by telex, by telephone or verbally;
(5) “Company’s Premises” means the premises mentioned in the Company’s quotation or other contractual document or, if not so mentioned, means the Company’s works at The Old Brickyard, Ashton Keynes, Swindon, SN6 6QR.
These conditions shall be deemed to be incorporated in all contracts of the Company to sell Goods and in the case of any inconsistency with any order, letter or form of contract sent by the Buyer to the Company or any other communication between the buyer and the Company whatever may be their respective dates, the provisions of these conditions shall prevail unless expressly varied in writing and signed by a director on behalf of the Company. Any concession made or latitude allowed by the Company to the Buyer shall not affect the strict rights of the Company under the Contract. If in any particular case any of these conditions shall be held to be invalid or shall not apply to the Contract the other conditions shall continue in full force and effect. Not with standing that the Company may have given a detailed quotation no order shall be binding on the Company unless and until it has been accepted in writing by the Company. These conditions shall apply to all contracts for sale of Goods by the Company to the Buyer to the exclusion of all other terms and conditions including and terms or conditions which the Buyer may purport to apply under any purchase order confirmation of order or similar document. All orders for goods shall be deemed to be an offer by the Buyer to purchase. Acceptance of delivery of Goods shall be deemed to be conclusive evidence of the Buyer’s acceptance of the “Goods”.
3. SUITABILITY OF GOODS
All Goods are supplied by the Company in good faith as suitable for the purposes indicated on the packaging and in the leaflets and literature. However, as the Company cannot exercise control over mixing or use, all conditions and warranties, statutory or otherwise, as to the quality or fitness or our goods for any purpose, are excluded and no responsibility will be accepted by the Company for any damaged or injury arising from their storage, handling, application or use except in so far as such exclusion is prevented by English Law. Any liability in respect of the quality or fitness for goods supplied shall not extend to loss of profits or consequential losses of any kind.
(i) The price payable for Goods shall unless otherwise stated by the Company in writing and agreed on its behalf be the list price of the Company current at the date of despatch and in the case of an order for delivery by instalments the price payable for each instalment shall be the list price of the Company current at the date of despatch of such instalment unless otherwise expressly stated to be firm for a period.
(ii) Unless otherwise stated to be firm for a period the Company’s prices are subject to variation to take account of variations in wages, materials or other costs since the date of the order. The Company accordingly reserves the right to adjust the invoice price by the amount of any increase or decrease in such costs after the price is quoted and the invoice so adjusted shall be payable as if it were the original contract price.
(iii) All prices are exclusive of Value Added Tax and this will be charged at the appropriate rate.
(iv) The Buyer agrees to pay for any loss or extra cost incurred by the Company through the Buyer’s instructions or lack of instructions or through failure or delay in taking delivery or through any act or default on the part of the Buyer its servants agents or employees.
5. TERMS OF PAYMENT
Payment is due on or before the 25th day of the month following the date of the invoice unless otherwise agreed by the Company and stated on the invoice. The time of payment shall be the essence of the contract.
6. OVERDUE ACCOUNTS
If payment is not made by the due date interest may be charged on the amount overdue, including VAT, at the rate of 5% above the current base rate of Lloyds TSB Plc until payment is made. This shall not, however, prejudice the Company’s right to take action to recover the total amount.
7. PASSING OF TITLE AND RISK
(i) From the time of delivery to the Buyer’s premises the Goods shall be at the risk of the Buyer who shall be solely responsible for their safe storage and handling but, unless otherwise expressly agreed in writing, the Goods shall remain the property of the Company until all payments under the contract and any other contract between the Company and Buyer have made in full and unconditionally. Whilst the ownership of the Company continues the Buyer shall keep the Goods separate and identifiable from all other goods in it’s possession as bailee for the Company.
(ii) In the event of any resale by the Buyer of the Goods the beneficial entitlement of the Company shall attach to the proceeds of sale or other dispositions thereof so that such proceeds or any claim therefore shall be assigned to the Company and until and subject assignment shall be held on trust in a separate identified account for the Company by the Buyer who will stand in a strictly fiduciary capacity in respect thereof.
(iii) In the event of failure to pay the price in accordance with the contract the Company shall have power to re-sell the Goods. Such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise and for such purpose the Company and its servants and agents may forthwith enter upon any premises or land occupied or owned by the Buyer to remove the Goods.
(iv) Pending payment of the full purchase price of the Goods the Buyer shall at all times keep the Goods comprehensively insured against loss or damage by accident, fire, theft and other risks usually covered by insurance in the type of business for which the Goods are for the time being used in an amount at least equal to the balance of the price for the same from time to time remaining outstanding.
(v) The Buyer’s entitlement to resell or use the Goods shall immediately cease if a Receiver or Administrative Receiver is appointed over all or any part of its assets or if it is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, or if the Buyer makes an arrangement with its creditors or generally becomes unable to pay its debts within the meaning of the Insolvency Act 1986 or any similar event occurs in any jurisdiction.
Orders for at least the Company’s minimum carriage paid quantity from time to time will be consigned at the Company’s cost to U.K mainland addresses; however, a surcharge will be added to invoices for consignments below the minimum carriage paid quantity. Carriage charges for all other destinations are as stated on the Company’s invoice for the goods.
Customers are expected to check all product items immediately on delivery and in the event of goods being damaged they should not be signed for, nor accepted, but left with the Carriers. However, if the damage or short delivered goods are accepted, the goods should be signed for as damaged or short delivered. Confirmation of the claim must be made in writing to both the Carriers and the Company as follows:-
Within 14 days of date of invoice for non delivery of the whole or any part of the consignment.
Within 7 days of delivery for damaged goods.
Signatures endorsed “unexamined” or “unchecked” will not be accepted by Carriers as a basis for a claim. Failure to comply with the above mentioned procedure will invalidate claims.
Goods supplied in accordance with the Buyer’s order cannot be returned without the Company’s prior permission. Authorised returns shall be sent to the Company’s Premises at the Buyer’s Expense.
11. DEFAULT OR INSOLVENCY OF BUYER
If the Buyer shall be in breach of any of its obligations under the Contract or if any distress or execution shall be levied on the Buyer’s property or assets or if the Buyer shall make or offer to make any arrangement or composition with it’s creditors or commit any act of bankruptcy or if a bankruptcy petition be presented against him or(if the Buyer is a Company) if any Resolution or Petition to wind up such company, voluntarily or otherwise, shall be passed or presented or if a Receiver of the whole or any part of such company’s undertaking, property or assets shall be appointed, or if any application shall be presented for the making of an Administration Order in respect of such company, The Company in its discretion and without prejudice to any other right or claim may, by notice in writing, determine wholly or in part any and every contract between the Company and the Buyer or may(without prejudice to the Company’s right subsequently to determine the contract for the same cause should it decide), by notice in writing suspend further deliveries of Goods until any defaults by the Buyer be remedied.
12. CONDITIONS AND WARRANTIES
The liability of the Company to the Buyer for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the price of the Goods but without prejudice to Clause 13 below,
(i) The Contract shall not constitute a sale by description or sample.
(ii) Subject as expressly provided in these Conditions and except where Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), any conditions or warranties (whether express or implied by statute common law or arising from conduct or a previous course of dealing or trade custom or usage) as to the quality of the Goods or their fitness for any particular purpose (even if that purpose is made known expressly or by implication to the Company) or as to the correspondence of the Goods with any description or sample are hereby expressly negatived.
(iii) Where Goods are sold under a consumer transaction (Restrictions on Statements) Order 1976), the statutory rights of the Buyer are not affected by these conditions.
13. DEFECTIVE GOODS
(i) In substitution for all rights which the Buyer would or might have but for these conditions the Company undertakes in the case of Goods manufactured by the Company that if within three months of delivery of any item of the Goods a serious defect in materials or workmanship appears therein it will at its own discretion either credit to the Buyer in full the price paid by the Buyer to the Company for such item or repair it or supply a replacement thereof free of charge at the place of delivery specified by the Buyer for the original Goods provided that in any case they have been accepted and paid for.
(ii) In the case of goods not manufactured by the Company, the Company will pass on to the Buyer to the extent that it is able any benefits obtainable under any warranty given by the Company’s supplier provided that the Goods have been accepted and paid for.
(iii) In order to exercise its rights under this condition the Buyer shall inform the Company within seven days of the date when such defect appeared or ought reasonably to have been discoverable and shall at the Company’s written request return the defective Goods carriage paid to the Company’s premises.
(iv) Nothing herein shall impose any liability upon the Company in respect of any defect in the Goods arising out of the acts of omissions, negligence or default of the Buyer, its servants or agents including in particular but without prejudice to the generality of the foregoing any failure by the Buyer to comply with any recommendations of the Company as to storage and handling of the Goods.
(v) Where the Goods are for delivery by instalments any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Buyer shall be bound to accept delivery thereof.
(vi) Nothing in these Conditions shall have the effect of excluding or restricting the liability of the Company for death or personal injury resulting from its negligence in so far as the same is prohibited by the United Kingdom statute.
14. CONSEQUENTIAL LOSS
The Company shall not be liable for any costs, claims or damages or expenses arising out of any tortuous act or omission or any breach of contract or statutory duty calculated by reference to profits, income production or accruals or by reference to accrual of such costs, claims, damages or expenses on a time basis.
Save as provided in Conditions 16 to 19 hereof contracts may not be cancelled except by agreement in writing by both parties and upon payment to the Company of such amount as may be necessary to indemnify the Company against all loss resulting from the said cancellation.
No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by any of the agents or employees of the Company shall be constructed to enlarge, vary or override in any way any of these conditions.
17. FORCE MAJEURE
The Company shall be entitled to delay or cancel delivery or to reduce the amount delivered if it is prevented from or hindered on or delayed in manufacturing, obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond its control including but not limited to strikes, lock-outs, accidents, war, fire, reduction in or unavailability of power at manufacturing plant or machinery or shortage or unavailability of raw materials from normal source of supply.
18. VALUE ADDED TAX
All prices quoted are normally shown exclusive of V.A.T. which the Buyer and charged at the rate ruling at the tax point.
The headings in these Conditions are intended for reference only and shall affect their construction.
20. PROPER LAW
The Contracts shall in all respects be governed by English Law and shall be deemed to have been made in England and the Buyer and the Company agree to submit to the non-exclusive jurisdiction of the English Courts.