COWENS LIMITED ('the Seller') CONDITIONS OF TRADING
THESE CONDITIONS CONTAIN LIMITATIONS OF SELLERS LIABILITY
These conditions apply to all sales of good by the Seller to any purchaser ('the Buyer') and shall prevail over and apply to the exclusion of any terms or conditions contained or referred to in the Buyer's order or in correspondence or elsewhere or implied by trade custom practice or course of dealing unless specifically agreed to in writing by a director or other authorised representative of the Seller and any purported provisions to the contrary are hereby excluded or extinguished.
2. Quotation (and Acceptance)
(a) A quotation by the Seller does not constitute an offer and may be withdrawn or revised at any time prior to the Seller's acceptance of the Buyer's order and will by deemed to by withdrawn after 30 days unless otherwise stated.
(b) 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 so confirmed and the Buyer so acknowledges and waives any claim in respect thereof.
(c) Any typographical, clerical or other error or omission in any 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 of the part of the Seller.
(a) The prices payable for the goods shall be those contained in the Seller's list prices therefore current at the time of despatch and are strictly net. The Seller shall have the right at any time to withdraw any discount from its normal prices and/or to revise prices to take into account increases in costs including (without limitation) costs of any good material carriage labour or overheads the increase of imposition of any tax duty or other levy and any variation in exchange rates.
(b) VAT and any other tax or duties payable by the Buyer shall be added to the price.
4. Terms of Payment
(a) Payment of invoices shall unless otherwise agreed in writing be made in full without any deduction or set-off on or before the end of the month following the date of the invoice, and in respect of any payment time shall be of the essence.
(b) Any extension of credit allowed to the Buyer may be changed or withdrawn at any time.
(c) Interest shall be payable on overdue accounts at the rate of 2.5% over HSBC Plc base rate from time to time to run from the due date for payment thereof until receipt by the Seller of the full amount whether or not after judgement.
(d) If the Buyer fails to make payment on the due date then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to:-
(i) cancel the contract or suspend any further deliveries to the Buyer.
(ii) 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)
(a) Delivery dates mentioned in any quotation acknowledgement of order or elsewhere are approximate only and not of any contractual effect and the Seller shall not be under any liability to the Buyer in respect of any failure to deliver on any particular date or dates. Goods may be delivered in advance of the quoted delivery date upon reasonable notice to the Buyer.
(b) Delivery shall be at the Seller's premises (unless other wise stipulated or agreed by the Seller) when the Buyer shall take delivery. Where the Seller agrees to arrange carriage of the goods whether or not at the cost of the Buyer the Seller shall be at liberty to make such arrangements as it thinks reasonable. Goods shall be at the risk of the Buyer from the time of delivery.
(c) If the Buyer refuses or fails to take delivery of goods tendered in accordance with the contract the Seller shall be entitled to immediate payment in full for the goods so tendered. The Seller shall be entitled to store at the risk of the Buyer and to insure any goods of which the Buyer refuses or fails to take delivery or which are the subject of future delivery and the Buyer shall in addition to the purchase price pay all costs of such storage insurance and any additional costs incurred as a result of such refusal or failure. The Seller shall be entitled after the expiration of 3 months from the date upon which the price became payable to dispose of the goods in such manner as the Seller may determine and after deducting all such costs as aforesaid account to the Buyer for the excess over the price or charge the Buyer for any shortfall below the price.
(d) The Seller shall be deemed to have fulfilled its contractual obligations in respect of any delivery though the quantity may be up to 10% more or less than the quantity specified in the contract and in such event the Buyer shall pay for the actual quantity delivered.
(e) 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 terms and conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat any contract as a whole as repudiated.
(f) 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 to replace those not delivered over the price of the goods.
(a) Title to the goods shall not pass to the Buyer and accordingly the Seller reserved the right of disposal of the same until payment in full of all outstanding amounts and, when any cheque is given in payment, until the same had been bet in full. Until such payment the Buyer shall have possession of the goods as bailee for the Seller, shall store the goods in such a way as to enable them to be identified as the property of the Seller and, should the Seller so wish, shall deliver the goods up to the Seller.
(b) If the Buyer is purchasing the goods for re-sale the Buyer may in the ordinary course of its business sell and deliver the goods to a third party on condition that until such payment as aforesaid the Buyer shall hold all proceeds of such sales in trust for the Seller and in a separate account.
(c) If the goods are combined by the Buyer with other items or materials or utilised in the production of other items the Seller shall retain legal and beneficial ownership of the goods if they remain capable of removal or separation from the resulting items.
(d) Until such payment as aforesaid the Buyer will be responsible for any damage loss injury or destruction to or suffered by the goods (other than that arising out of the negligence of the Seller) and the Buyer shall indemnify the Seller against any damage or loss incurred thereby.
(e) Notwithstanding the foregoing the goods shall be at the Buyer's risk from the time of delivery to it, or to any carrier or agent acting on its behalf.
(f) The Seller reserves the right to re-possess any goods in respect of which payment is due and thereafter to re-sell the same and for this purpose the Buyer hereby grants an irrecoverable right and licence to the Seller's servants and agents to enter upon all or any of its premises with or without vehicles during normal business hours. This right shall continue to subsist notwithstanding the termination of the contract for any reason and is without prejudice to any accrued rights of the Seller thereunder or otherwise.
(g) The above terms do not entitle the Buyer to return goods or refuse or delay payment on the grounds that the property in them has not passed to the Buyer.
(h) 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 monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
(a) Cancellation will only be agreed to by the Seller on condition that all costs and expenses incurred by the Seller up to the time of cancellation and all loss of profits and other loss or damage and costs
and expenses resulting to or incurred by the Seller by reason of such cancellation will be reimbursed by the Buyer to the Seller forthwith.
(b) The Seller at its sole discretion may accept the return of any goods ordered by but subsequently found to be surplus to the requirements of the Buyer.
8. Third Party Rights
(a) The Buyer shall indemnify the Seller against any and all liabilities claims and costs incurred by or made against the Seller as a direct or indirect result of the carrying out of any work required to be done on or to the goods in accordance with the requirements or specifications of the Buyer involving any infringement or alleged infringement of any rights of any third party.
(b) The Seller shall have no liability to the Buyer in the event of the goods infringing or being alleged to infringe the rights of any third party. In the event that the goods are or may be the subject of patent copyright registered design trade mark or other rights of any third party the Seller shall be obliged upon sale of goods to confer on the Buyer only such title as the Seller may have.
(a) Unless expressly agreed in writing by the Seller all drawings design colours specifications and particulars of weights and dimensions submitted by the Seller are approximate only and the Seller shall have no liability in respect of any deviation there from. Any such deviation shall not be a ground for refusal or cancellation of the remainder of any order or contract. The Seller reserves the right at any time to alter or improve the specification of any of its products. The Seller accepts no responsibility for any errors omissions or other defects in any drawings designs or specifications not prepared by the Seller and the Seller shall be indemnified by the Buyer against any and all liabilities and expenses incurred by the Seller arising therefrom.
(b) The Seller reserved 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, where the goods are supplied to the Seller's specification which do not materially affect their quality or performance.
(a) The Seller undertakes that goods manufactured by it shall be of sound and workmanlike construction and the Seller will replace any goods which are agreed to be defective through faulty workmanship or materials within 28 days of despatch provided they are returned to the Seller's premises carriage paid.
(b) The Seller shall not be liable to the Buyer:-
(i) for shortages in quantity delivered unless the Buyer notifies the Seller of any claim for short delivery within 14 days of receipt of the goods.
(ii) for damage to or loss of the goods or any part thereof in transit (where the goods are carried by the Seller's own transport or by a carrier on behalf of the Seller) unless the Buyer shall notify the Seller of any such claim within 14 days of receipt of the goods.
(iii) for defects in the goods caused by any act neglect or default or misuse of the Buyer or of any third party.
(iv) for other defects in the goods unless notified to the Seller within 14 days of receipt of the goods by the Buyer or where the defect would not be apparent on reasonable inspection within 28 days of delivery.
(c) The Seller may at its option make good any shortage or non-delivery and/or as appropriate replace or repair any goods found to be damaged or defective and shall be under no liability in respect of any loss or damage whatsoever arising from the initial delivery of defective goods or from the delays before the defective goods are repaired or the substitute goods are delivered.
(d) The Seller's aggregate liability to the Buyer whether for negligence breach of contract misrepresentation or otherwise shall in no circumstances exceed the cost of the defective, damaged or undelivered goods determined by the net price invoiced to the Buyer in respect of any occurrence or series of occurrences.
(e) The Seller's prices are determined on the basis of the limits of liability set out in this condition. The Buyer may be given written notice to the Seller requesting the Seller to agree a higher limit of liability provided insurance cover can be obtained therefore. The Seller shall effect insurance up to such limit and the Buyer shall pay upon demand the amount of any and all premiums. The Buyer shall disclose such information as the insurers shall require. In no case shall the Buyer be entitled to recover from the Seller more than the amount received from the insurers.
(f) Subject to the foregoing all conditions warranties and representations expressed or implied by statute common law or otherwise in relation to the goods are hereby excluded and the Seller shall be under no liability to the Buyer for any costs expenses loss damage compensation or injury direct or indirect or consequential (and whether for loss of profit or otherwise) resulting from defective material faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Seller its employees or agents save that the Seller shall accept liability for death or personal injury caused by the negligence of the Seller.
(g) 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 terms and conditions, the 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.
(h) The Seller hereby expressly authorises the Buyer and the Buyer agrees to use its best endeavours (and if unsuccessful to notify the Seller in writing accordingly and within a reasonable time) include a provision to the effect in the contract relating to the sale by the Buyer to any other party of the goods (or parts thereof) that this warranty is accepted to exclusion of any other legal rights or obligations.
11. Force Majeure
(a) The Seller shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of goods by the Seller being prevented hindered delayed or rendered uneconomic by reason of circumstances or events beyond the Seller's reasonable control including but not limited to act of God war riot strike lock-out trade dispute or labour disturbance accident break-down of plant or machinery fire flood or storm difficulty or increased expense in obtaining workmen materials or transport or other circumstances affecting the supply of the goods or of raw materials therefore by the Seller's normal means or the delivery of the goods by the Seller's normal route or means of delivery and deliveries.
(b) If due to such events or circumstances the Seller has insufficient stocks to meet all its commitments the Seller may suspend deliveries in whole or in part and may apportion available stocks between its customers at its sole discretion.
12. Waiver and Variation
(a) Failure by the Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter
(b) No variation of these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
Any notice hereunder shall be deemed to have been duly given if sent by prepaid first class post telex telegraph or facsimile to the party concerned at its last known address. Notices sent by first class post shall be deemed to have been given on the next day (excluding weekends bank and public holidays) after despatch and notices sent by telex telegraph or facsimile shall be deemed to have been given on the date of despatch
14. Governing Law
The contract shall be governed and construed in all respect in accordance with the Laws of England and the parties hereby submit to the jurisdiction of the English Courts.