Terms & Conditions
1. IN these Conditions (unless the context otherwise requires):
(1) "the Company" means Network Distribution Ltd and also (where the context so permits) its assigns and any sub-contractor for the said company.
(2) "Goods" means the articles or things or any of them (whether new or used) described in the Contract.
(3) "the Buyer" means the person, firm or company with whom the Contract is made by the Company whether directly or indirectly through an agent or factor who is acting for or instructed or whose actions are ratified by such person, firm or company.
(4) "the Contract" means the Company's acknowledgement of the Buyer's Order for the goods, the Company's quotation for the sale or supply of the Goods and any document referred to therein, these conditions of contract and the Buyer's order for the Goods and if there shall be any inconsistency between the documents comprising the Contract they shall have precedence in the order herein listed
(5) words in the singular shall include the plural and vice versa.
(6) references to any gender shall include the others; and
(7) references to legal persons shall include natural persons and vice versa.
(1) THESE Conditions shall be deemed to be incorporated in the Contract 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 date the provisions of these Conditions unless expressly varied in writing and signed by a person duly authorised 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.
(2) Enclosed are a copy of the Company's Safety Instructions in connection with the use of the Goods. The Company strongly recommends that the Buyer reads, and ensures that its appropriate employees have read and understand those safety instructions in full before utilising the Goods. The Company will be happy to provide extra copies of the Safety Instructions or to assist with telephone enquiries regarding safety, should the Buyer so wish.
3. Notwithstanding that the Company may have been given a detailed quotation no Order shall be binding on the Company unless and until it has been accepted in writing by the Company.
4. (1) Unless otherwise agreed by the Company in writing;
(a) the price payable for goods shall be the quoted price specified in the Company's acknowledgement of Order;
(b) that in the case of an Order for delivery by instalments the cost payable for each instalment shall be the relevant proportion of the total cost of the goods:
(c) the Company's prices are subject to variation to take account of variations in wages, materials and 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 in such costs after the prices quoted and the invoice so adjusted shall be payable as if it were the original Contract price.
(2) All prices are exclusive of Value Added Tax and this will be charged at the appropriate rate.
5. The Buyer agrees to pay 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.
6. The Buyer shall indemnify the Company against all costs, claims, losses, expenses and damages incurred by the Company or for which it may be liable due to or arising out of any infringement or alleged infringement of patents, trade marks, copy rights, design right or other intellectual property right occasioned by the manufacture or sale of the Goods if made to the specification or special requirements of the Buyer.
TERMS OF PAYMENT
(1) Unless otherwise agreed by the Company in writing payment for the Goods shall be in cash not later than the tenth day of the month next following the month of the date of delivery, save that payment shall become due in any event forthwith upon the occurrence of any of the events referred to in Condition 18 hereof.
(2) If the Goods are delivered in instalments the Company shall be entitled to invoice each instalment as and when delivery thereof has been made and payment shall be due in respect of each instalment whereof delivery has been made, notwithstanding non delivery of other instalments or other default on the Company's part.
(3) If the Company has agreed in writing that the price shall be payable by instalments or if the Buyer has agreed to take specified quantities of the goods at specified times, a default by the Buyer of the payment of any due instalment or the failure to give instructions in respect of any quantity of goods outstanding shall cause the whole of the balance of the price to become due forthwith.
(4) The price of the Goods shall be due in full to the Company in accordance with the Terms of the Contract and the Buyer shall not be entitled to exercise any set off, lien or any other similar right or claim.
(5) The time of payment shall be the essence of the Contract.
(6) Without prejudice to any other right, it may have the Company is entitled to charge interest at 4% above the then current base rate of HSBC Bank Plc on overdue payments of the price of the goods or the price of any instalments thereof.
(1) THE period for delivery shall be the period stated in the Contract or (if not so stated) the period notified by the Company whether orally or in writing shall be calculated from the time of the Company's acceptance of the Buyer's Order or from the Company's receipt of all necessary information to enable the Company to manufacture the Goods whichever shall be the later and the Buyer shall take delivery of the Goods within that period.
(2) All times or dates given for the delivery of the Goods are given in good faith but without any responsibility on the Company's part. Time of delivery shall not be of the essence of the Contract, nor shall the Company be under any liability for any delay beyond the Company's reasonable control.
(3) Where the Goods are handed to a carrier for carriage to the Buyer or to a United Kingdom port for export any such carrier shall be deemed to be an agent of the Company and not of the Buyer for the purpose of Sections 44, 45 and 46 of the Sale of Goods Act 1979.
(4) The Buyer agrees that Section 32 (3) of the Sale of Goods Act 1979 shall not apply to goods sent by the Company.
(5) Without prejudice to any other conditions hereof, no liability for non delivery, loss of or damage to the Goods occurring prior to delivery or for any claim that the Goods are not in accordance with the Contract will attach to the Company unless claims to that effect are notified in writing by the Buyer to the Company (and in the case of claims for non-delivery, loss or damage with a copy to the carrier if the Company's own vehicles have not been used to deliver the Goods);
(a) Within seven days of dispatch or collection (as appropriate) for loss, damage or non-compliance with the Contract; or
(b) Within seven days of dispatch in respect of delivery.
(6) In the event of a valid claim for non-delivery, loss, damage or non-compliance with the contract the Company undertakes at its option either to re-possess or replace the Goods at its expense but shall not be under any further or other liability to any person in connection with such non-delivery, loss, damage or non-compliance.
(7) If the Buyer shall fail to give notice in accordance with Condition 8 (5) above, the Goods shall be deemed to be in all respects in accordance with the Contract and without prejudice to earlier acceptance by the Buyer it shall be bound to accept and pay for the same accordingly.
(8) If the Buyer fails to collect or take delivery (as the case may be) of any of the Goods or to provide any instructions, documents, licences or authorisation required to enable the Goods to be delivered on time (except because of the Company's fault) risk in the Goods will pass to the Buyer (including, without limitation, for loss or damage caused by the Company's negligence); the Goods will be deemed (on written notice given by the Company) to have been delivered and the Buyer shall be bound but paid for the Goods accordingly. Without prejudice to its other rights, the Company may (but shall not be obliged to):
(a) Store or arrange for the storage of the Goods until actual delivery or sale and charge the Buyer for all related costs and expenses (including, without limitations, storage and insurance); and/or
(b) Where the Buyer has not paid for the Goods, sell any of the Goods at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under Contract.
(9) The Company shall have the right to make delivery by instalments of such quantities and at such intervals as it may decide, and any express provision as to instalments in the contract shall be in addition to and not in derogation of this right.
(10) Without prejudice to any other provisions of these conditions the Buyer shall not have the right to reject any items of the goods if:
(a) It asks the Company to repair the same or consents to the Company so doing; or
(b) It resells such items; or
(c) It accepts any other item of the Goods.
(11) The Company shall be entitled (at its absolute discretion) to withhold supply or delivery of any or all of the Goods until all payments under any other Contract between the Company and the Buyer have been made in full and unconditionally.
9. Goods supplied in accordance with the Contract cannot be returned without the Company's prior written authorisation. Duly authorised returns (accompanied by a comprehensive delivery note which must include the Company's Works Order Number) shall be sent to such address in the United Kingdom (which for the purposes of these Conditions of Contract shall include the Channel Islands ) as the Company may specify, at the Buyer's expense.
10 Unless otherwise agreed by the Company in writing or unless the Company has requested to and does quote a price expressly stated to be a delivery price, the price of the Goods is exclusive of carriage, packing and insurance to the Buyer's premises and accordingly, unless the Buyer requests in writing that he or his carrier be allowed to collect the Goods (in which event the Company shall notify to the Buyer the location from which the Goods can be collected), the Company shall arrange for delivery of the Goods to the Buyer's premises and shall charge the Buyer for delivery in accordance with the Company's usual practice.
PASSING OF TITLE AND RISK
(1) From the time of delivery the Goods shall be at the Buyer's risk who shall be solely responsible for the custody and maintenance but, unless otherwise expressly agreed in writing, the Goods shall remain the Company's property until all payments under contract and any other contract between the Company and the Buyer have been made in full and unconditionally. Whilst the Company's ownership continues the Buyer shall keep the Goods separate and identifiable from all other goods in its possession as bailee for the Company.
(2) In the event of any resale by the Buyer of the Goods, the Company's beneficial entitlement shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefore shall be assigned to the Company and until such assignment shall be held on trust in a separate identified account for the Company by the Buyer and such proceeds shall not be mingled with other monies or paid into any overdrawn bank account and shall at all times be identifiable as the Company's monies.
(3) In the event of failure to pay the price in accordance with the Contract the Company shall have power to resell 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.
(4) Pending payment of the full purchase price for 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 carried on by the Buyer in an amount at least equal to the balance of the price for the same from time to time remaining outstanding. The policy shall bear and endorcement recording the Company's interest.
CONDITIONS AND WARRANTIES
(1) The Contract shall not constitute a sale by description or sample.
(2) It is the responsibility of the Buyer to inspect all goods prior to despatch and to ascertain for itself the fitness of the Goods for the purpose for which they are intended.
(3) Any Conditions or Warrantees (whether express or implied by statute, common law or arising from conduct or a previous course of dealing or trade, customer or usage) as to the fitness of the Goods 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.
(4) Any Conditions or Warranties (whether expressed or implied by statute, common law or arising from conduct or a previous course of dealing or trade customer 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.
(1) In substitution for all rights which the Buyer would or might have but for these conditions, the Company undertakes in the case of Goods supplied by the Company that if within one month 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.
(2) In order to exercise its right 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 our premises (as defined in Condition 22 below) or such other address as may be advised by the Company.
(3) Nothing herein shall impose any liability upon the Company in respect of any defect of the Goods arising out of the acts, 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.
(4) Where the Goods are for dispatch 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.
(5) Nothing herein shall have the effect of excluding or restricting the liability of the Company for death or personal injury resulting from its negligence insofar as the same is prohibited by United Kingdom statute.
14. THE Buyer agrees to indemnify the company and to keep the Company fully and effectually indemnified from and against all losses, costs (on a full indemnity basis), claims, demands and expenses by any person whatsoever whether for injury, loss or damage caused by or in connection with or arising out of the use of the Goods after delivery except to the extent that the Company is liable to the Buyer in accordance with these conditions.
15. THE Company shall not be liable for imperfect work caused by any inaccuracies in any drawing, bills or quantities or specifications supplied by the Buyer.
INTELLECTUAL PROPERTY RIGHTS
16. ALL intellectual property rights in Goods and drawings relating thereto are expressly reserved. The Buyer shall not without consent in writing of a Director of the Company make copies of any drawings supplied by the Company nor otherwise utilise any of the Company's intellectual property rights.
17. THE Company shall not be liable for any cost, claims, damages or expenses arising out of any tortious act or omission or any breach of contract or statutory duty calculated by reference to loss of profit, loss of use, loss of production, loss of contract or any financial or economic loss or any indirect or consequential damage whatsoever or by reference of accrual of such costs, claims, damages or expenses on a time basis.
DEFAULT OR INSOLVENCY OF BUYER
18. IF the Buyer shall be in breach of any of its obligations under the Contract or if any 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 his creditors or commit any act of bankruptcy or if any bankruptcy petition be presented against him or (if the Buyer is a company) if any resolution or petition to wind up such company shall be passed or presented or if a receiver, administrative receiver or administrator of the whole or any part of such company's undertaking property or assets shall be appointed, 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 so decide) by notice in writing suspend further deliveries of Goods until any defaults by the Buyer be remedied.
LIMITATION OF LIABILITY
(1) The following provisions and the provisions of Condition 8, 12, 13 and 17 set out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) Any breach of these conditions; and
(b) Any representations, statement or tortious act or omission including negligence arising under or in connection with the Contract.
(2) Nothing in these conditions excludes or limits the liability of the Company for fraudulent misrepresentation or death or personal injury caused by the Company's negligence.
(3) Subject to Conditions 12 (3) and 19 (2) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the contract shall be limited to and in no circumstances shall exceed the price of the Goods.
20. No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by any of the Company's agents or employees shall be construed to enlarge, vary or override in any way any of these Conditions.
21. The Company shall be entitled to delay or cancel delivery or to reduce the amount of Goods delivered if it is prevented from or hindered in 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, breakdown of plant or machinery or shortage or unavailability of raw materials from normal sources of supply.
SALE OR RETURN
(1) THE provisions of this Condition 22 shall apply whenever the Company states in its Acknowledgment of Order that Goods are supplied on sale or return terms and shall apply in addition to the other provisions set out in these Conditions of Contract which save as varied by this Conditions shall apply to Contracts for the supply of Goods on sale or return terms.
(2) The Goods stated in the Company's Acknowledgment of Order as being supplied on Sale or Return Terms are supplied on the basis that no charge will be made by the Company in respect of Goods returned to the Company within one calendar month of the day of despatch to the buyer provide that:-
(a) such Goods are returned in good undamaged and saleable conditions carriage paid to the company at the premises of the Company in Tunstall Road, Cheshire (the Northwest Storage Facility) or such other address as may be advised by the Company, or
(b) (if the Buyer requests that the Company arrange carriage) are supplied in good undamaged and saleable conditions to the Company's carrier in which event the cost of such carriage shall be payable by the Buyer; and
(c) Such Goods are in any event accompanied by a comprehensive delivery note which must include the Company's Works Order Number.
(3) In the event that the Goods are not returned within the period set out above or are returned in a damaged or unsealable condition, or are not accompanied by the appropriate delivery note, then the Company shall invoice to the Buyer the full price of the Goods concerned as shown in the Company's Acknowledgment of Order and in addition the Company may invoice the Buyer in respect of the full amount of any carriage charges applicable.
(4) The Northwest Storage Facilities are open for the return of Goods only between the hours of 9.00am to 1pm and 2pm to 5pm Monday to Friday (in each case excluding Bank and Public Holidays). In no event shall Goods be accepted for return outside these times.
(5) Risk in Goods returned to the Company pursuant to these Conditions shall remain with the Buyer unless and until such Goods are returned to the Company in the manner set out in these Conditions.
(6) Time is of the essence in respect of all time periods stated in the Condition 22.
(7) Notwithstanding any other provision of these Conditions, the Buyer shall in any event be responsible for the outward cost of carriage of Goods supplied on sale or return save where the Buyer has collected the Goods.
GOODS ON RENTAL
23. WHERE Goods are supplied on rental, the Company's terms and conditions relating to rental shall apply. Such Conditions incorporate certain of the provisions set out herein by reference.
24. SAVE as provided in Conditions 18 and 21 hereof contracts may not be cancelled except by agreement in writing of both parties and upon the payment to the Company of such amount as may be necessary to indemnify the Company against all loss resulting from the said cancellation.
PALLETS FOR DESPATCH
25. The Company reserves the right to charge in full for all pallets and any packing cases used in the despatch and delivery of Goods. Full credit will be made for any pallets returned to the Northwest Storage Facility (as detailed in condition 22 above) or such other address as may be advised by the Company in perfect condition carriage paid within one month of delivery.
26. THE Company may assign the Contract with the Buyer or sub-contract the whole or any part thereof to any person, firm or company.
(1) Unless stated otherwise in the Conditions, any notice given in connection with the Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission to the Company or the Buyer, as the case may be, at its address stated in the Contract or to either party's registered office.
(2) Notices shall be deemed to have been received:
(a) if sent by pre-paid first class post two days (excluding Saturdays, Sundays and bank and Public Holidays) after posting (exclusive of the day of posting);
(b) if delivered by hand, on the day of delivery;
(c) if sent by facsimile transmission on a working day prior to 4.00pm at the time of transmission and otherwise on the next working day.
(3) Notices addressed to the Company shall be marked for the attention of the Managing Director.
28. THE headings in these Conditions are intended for reference only and shall not affect their construction.
29. THE Contract shall in all respects be governed by English Law and the Buyer and the Company agree to submit to the non-exclusive jurisdiction of the English Courts