terms and conditions

 

1. Definitions and Interpretation

(1) In these conditions “we, us, our” means Barkston ltd.  “Conditions” means these Conditions of Sale.  “Contract” means the contract for the sale of the Goods and supply of the Services (in which these Conditions of Sale apply).  “Goods” means the goods including any part thereof which we are to supply pursuant to or in connection with your purchase order and the Contract.  “Packaging” means wooden pallets, stillages, boxes, bubble packs.  “Services” means the Services including any part thereof which we are to supply pursuant to or in connection with your purchase order and the Contract.  “You, yours” means the person, firm or company who buys or agrees to buy the “goods” or the “Services”.

(2) Any reference in these Conditions to any provision of a status shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

 

2. Acceptance and Amendment

1)These General Conditions shall (unless or except to the extent we otherwise agree in writing) apply to all tenders, offers, quotations, acceptances, agreements and deliveries relating to the sale of goods and supply of services by us and you shall be deemed to assent thereto.

2) Each order is subject to these Conditions and Sale (in so far as not inconsistent with any special terms agreed between you and us to which you shall be deemed to assent).

3)   No other conditions or modifications of these Conditions shall be binding on us unless we agree thereto in writing and we shall not be deemed to accept such other conditions nor to waive any of these Conditions by failing to object to provisions contained in any purchase order or other communication from you.

4)  No-one other than one of our directors has authority to amend or waive any of these Conditions or other provisions of the contract.

 

3.Specifications

1) Any advice or recommendation given by us or our employees or agents to your or your employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by us is followed or acted upon entirely at your own risk, and accordingly we shall not be liable for any such advice or recommendation which is not so confirmed.

2) All descriptions, specifications, drawings, weights, dimensions, capacities, prices, performance ratings and other data quoted or submitted by us or included in any sales literature, quotation, price list, acknowledgement of order, invoice or other document or information issued by us are to be deemed approximately only (except where stated in writing to be exact or expressly made of the essence) and subject thereto none of such items of any part thereto shall form part of the Contract (other than as approximations).

3) Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acknowledgement of order, invoice or other document or information issued by us shall be subject to correction without any liability on our part.

4) We reserve the right to make any changes in the specification of Goods or Services which are required to conform with any applicable safety or other legal requirements or which do not materially affect their quality and performance.

 

4. Orders

You may not cancel any order which we have accepted unless we so agree in writing and on terms that you shall indemnify us in full against all loss (including loss of profit), costs, (including the cost of all labour and materials used), damages, charges and expenses incurred or suffered by us as a result of cancellation.

 

5. Prices

1) Unless we have otherwise agreed in writing or stated on our quotation or acknowledgement of order the price payable by you shall be our ex-works lists price ruling at date of dispatch.

2) All prices quoted are valid for 30 days only or until earlier acceptance by you after which time they may be altered by us without giving you notice.

3) After an order has become binding on us, all prices will have VAT added at the appropriate rate and are subject to increase to reflect increases from time to time in list prices and any increases in costs to us (including without limitation costs of materials, labour, transport and services, and fluctuations in currency exchange rates and any tax, duty, fee or charge imposed by any government or other authority) prior to delivery, any change in delivery dates, quantities or specifications for the Goods or Services which you request or any delay caused by your instructions or your failure to give us adequate information or instructions.

4) Again unless otherwise agreed in writing or stated on our quotation or acknowledgement of order, packaging, delivery and transport charges, insurance, the cost of installation and/or erection on site, and the cost of any commissioning or running or installation tests and of materials used therefore are not included in the price and will be charged extra at our rates for same.

5) The cost of pallets and returnable containers will be charged to you in addition to the price of the Goods but full credit will be given to you provided they are returned undamaged to us before the due payment date.

 

6. Payment

1)Unless stated on our quotation or acknowledgement of order, or agreed by both parties in writing, the nett invoice amount shall be paid in full by you to us within 30 days following end of the month delivery or (if earlier) upon the occurrence of any circumstances where under, pursuant to the Contract or these Conditions, payment falls immediately due.  The time of payment shall be of the essence of the Contract.  If payment is not made by the due date any discount given to the customer shall be reinstated and become payable as part of the price and a supplementary invoice for such discount will be raised.  In addition you will be responsible for any legal costs incurred in recovering the whole of the debt outstanding.

2) We reserve the right at any time before proceeding or proceeding further with an order to demand full or partial payment of monies due and payable under the Contract and under any other contract between you and us.

3) If you default in any payment we may in addition to exercising the right contained in Condition 6(2) above suspend work, delay or withhold delivery or cancel the Contract or suspend work, delay or withhold delivery under or cancel any other contract between us and retain any progress payments on account already received under the Contract or under any other contract between us.

4) Interest at annual rate of three per cent above the base rate from time to time of Midland Bank PLC is payable on all overdue monies.

5) We shall have a lien on all undelivered goods which you agree to purchase from us for all monies due from you to us under any contract between you and us and shall have no right to set-off in respect of such monies.

6) All rights and remedies afforded to us in these Conditions for non-payment shall be in addition and without prejudice to all other rights and remedies available to us under the Contract or at law.

7) This contract is divisible.  Each delivery made hereunder shall be deemed to arise from a separate contract and shall be invoiced separately; any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for herein, without reference to and notwithstanding any defect of  default in delivery of any other installment.

 

7. Delivery

1)Time of delivery is not of the essence of the Contract and may no be made of the essence by notice and any time or date specified by us at the time of which or the date of which the Goods will be delivered or the Services performed is given and intended as an estimate only and the Seller shall not be liable for any loss, damage or expense however arising from delay in delivery.

2)  We reserve the right to make delivery by installments, unless otherwise expressly agreed in writing.  The period during which delivery by installments may be made and the quantity of Goods delivered in each installment shall be in our discretion.

3) Where goods are delivered installments, each delivery shall constitute a separate contract (in which these Conditions apply (mutatis mutandis)) and our failure to deliver any one or more of the installments or any claim by you in respect of any one or more installments shall not entitle you to treat the Contract as repudiated.

4)  Delivery will be made in such quantities as we feel appropriate for delivery of goods.  Subject thereto delivery of more or less than the quantity or weight of the Goods due for the delivery or the inclusion therewith of goods of a different description not included in the Contract shall not entitle you to reject the Goods delivered, and where we deliver 10 per cent more or less than the quantity or weight ordered we may charge pro rata for the quantity of weight supplied and you shall treat such delivery as full performance by us of our duty to deliver.  Our delivery note shall be accepted as conclusive proof of quantity of Goods delivered.

5)  Notwithstanding any express agreement as to the date of delivery we shall be entitled postpone or cancel in whole or in part the provision of the services when we are delayed in or prevented from making or obtaining goods or materials or parts or components or services therefore or making delivery of Goods or providing the Services by strikes, lockouts, trade disputes or labour troubles or any cause beyond our reasonable control including, but without limitation, act of God, your actions or those of your agents, embargo or other governmental act or request, fire, accident, war, riot, delay in transportation or inability to obtain adequate labour or manufacturing facilities.  During any of the foregoing events our obligations shall be suspended until such events cease or until we cancel delivery (as the case may be) and we shall not be required to obtain elsewhere in the market goods with which to replace or permit it to produce Goods delivery of which has been postponed or cancelled as a result of any of the said events.  In the event of cancellation, we shall be paid pro rata for Goods delivered, work done or Services provided to the date of cancellation.

6) If you fail to take delivery of Goods or fail to give us adequate delivery instructions at the time of delivery (otherwise than by reason of any cause beyond your reasonable control or by reason of our fault) then, without prejudice to any other right to remedy available to us (including our right to  payment) we may:

i)  Store the Goods until actual delivery and charge you for the reasonable costs (including insurance) of storage;

and

ii) Sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to you for the excess over the price under the Contract or charge you for any shortfall below the price under the Contract and you shall indemnify us in full against all losses, damages, charges and expenses incurred by us as a result of you said failure to take delivery or give adequate delivery instructions to the extent of our said losses, damages, charges and expenses are not covered by any payments made or monies obtained under (i) or (ii) above.

 

7) You shall be solely responsible for the proper unloading of the Goods.  If, to assist you remove the Goods from point of delivery, we or any sub-contractor does any loading or unloading of goods free of charge, no liability whatsoever shall thereby be incurred by us or sub-contractor and you shall indemnify us in respect thereof.

 

8. Testing/Erection and Installation

1) Unless otherwise agreed in writing or stated on our quotation you shall pay our reasonable charges for any installation, erection, testing or commissioning of Goods carried out by us or our agents or sub-contractors.

2) Results of tests which have been agreed and carried out in accordance with procedures agreed with us shall be regarded for the purpose of any claim against or in establishing any liability of against us.

3) If you wish to make any claim against us on the basis of tests which have been so agreed and carried out, we shall send to you not later than 2 month(s) after the date of delivery results of any such testing of the Goods together with details of the claim.  Failure to comply with this Condition 8(3) shall constitute a waiver by you of all claims based on or relating to the facts revealed by such testing.

4)  Where you want us to erect and install or to test or commission Goods on site, you shall supply us with full details necessary to enable us to do same and shall ensure that the site and access thereto and egress therefrom are suitable and that all necessary electrical, gas, water, compressed air, and other services, labour, test materials, security and safety precautions are available.

 

9.  Your Obligations and Claims on Delivery       

1) You will:

i)  examine Goods carefully within 2 working days of taking delivery

ii)Notify us (and any carrier for us) as soon as possible and in any event in writing within 3 working days of taking delivery of any error in quantity or weight or description of Goods delivered of that they were mixed with others not included in the contract or of any damage to goods revealed by such examination and not caused since delivery was taken.

 

2) Failure to make any notification in accordance with paragraph (ii) of Condition 9(i) above which examination under (i) above should have enabled you to make shall constitute a waiver by you of all claims based on or relating to facts which such examination should have revealed.

 

10.  Risk

1)  Risk of Damage to or loss of the Goods shall pass to you:

i)  in the case of Goods to be delivered at our premises, at the time when we notify you that the goods are available for collection; or

ii)  in the case of Goods to be delivered otherwise than at our premises, at the time of delivery (except where the goods are sold f.o.b.) or, if you wrongfully fail to take delivery of the Goods, the time when we have tendered delivery of the Goods.  Delivery to a carrier or to any person firm or company on your behalf shall constitute delivery to the buyer.

2) Where goods are sold f.o.b. all risk of damage or loss in transit shall pass to you when the Goods are placed on board ship, and we shall be under no obligation to give you the notice specified in Section 32(3) Sale of Goods Act, 1979

 

11. Title of Goods

1)                   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 your until we have received cash or cleared funds payment in full of the price of the Goods and all other Goods agreed to be sold by us to you for which payment is then due, together with any interest or other sums payable under the relevant contract in respect of the Goods and such other goods.

2)                   Until such time as the property in the Goods passes to you, you shall hold the Goods as our fiduciary agent, and bailee and shall keep the goods separate from your other goods and those third parties and properly stored and protected, insured and identified as our property.  Until that time you shall be entitled to resell or use the Goods in the ordinary course of your business, but shall account to us 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 other monies or property and that of third parties and, in the case of tangible proceeds, properly stored, protected and insured.

3)                   Until such time as the property in the Goods passes to you (and provided the Goods are still in existence and have not been resold) we shall be entitled at any time to require you to deliver up the Goods to us and, if you fail to do so, forthwith to enter upon any premises owned or occupied by you or any third party where the Goods are stored and repossess the Goods.

4)                   You shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain our property but if you do so all monies owing by you to us shall (with prejudice to any of our other rights or remedies) forthwith become due and payable.

 

12.  Warranties and Liability

1)                   Subject to the terms and conditions set out in this Condition 12, we warrant to you that the Goods will correspond with our specification at the time of delivery and will be free from defects in materials and workmanship for a period of (12 months) from delivery or (12 months) from the date of their initial use, whichever is the first to expire.

2)                   The warranty in Condition 12(1) above is given by us subject to the following conditions:

ii)                   we shall be under no liability where Condition 9(2) applies;

iii)                  otherwise, we shall be under no liability in respect of any defect in the quality or condition of the Goods or their failure to meet specification unless your claim is notified to us within (14 days) (a reasonable time after) the date upon which such defect or failure was or should reasonably have been discovered;

iv)                 we shall be under no liability in respect of any defect in the Goods arising from any drawing, design and specification supplied by you;

v)                   we shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow our instructions (whether oral or in writing), misuse or alteration or repair of the Goods without our approval.

vi)                 We shall be under no liability under such 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;

vii)                Such warranty does not extend to parts, materials or equipment not manufactured by us, in respect of which you shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to us.

viii)              We shall be under no liability for material/parts supplied to us on a free issue basis. Our liability extends only to the price quoted/charged for our labour content.

 

3)                   Subject as expressly provided in these Conditions all warranties, conditions or other terms implied by law are excluded to the fullest extent permitted by law.

4)                   Where any valid claim in respect of any Goods or part(s) thereof based on any defect in the quality or condition of the Goods or part(s) thereof or their failure to meet specification or perform is notified to us in accordance with these Conditions, we shall be entitled to repair or replace the Goods (or the part(s) in question) free of charge or, at our sole discretion, refund to you the price of the Goods (or a proportion part of the price) but we shall have no further liability to you.

5)                   Except in respect of death or personal injury caused by our negligence, we shall not be liable to you be reason of any representation, or any implied warranty, condition or other term, or any duty at 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 supply of the Goods or their use or resale by you except as expressly provided in these Conditions.

 

 13.   Trademarks, Patents and Other Industrial Rights

1)       If any claim is made against you alleging that Goods infringe any patent rights, registered designs, copyright or other industrial property rights of another then:

i)                     you shall forthwith notify us with full particulars and

ii)                   we or our suppliers or licensors (as case may be) shall be at liberty at our expense to conduct all negotiations and/or litigation in respect thereof and (if necessary) in your name, and

iii)                  except pursuant to a final award, you shall not pay or accept any such claim or compromise any proceedings without our consent  (which shall not be unreasonably withheld or delayed) and is as a result of such negotiations or litigation you shall be unable to use the Goods substantially for purpose for which they were bought we shall (except where Condition 14 below applies) take them back and refund the price thereof and such refund shall be in full satisfaction of all claims by you against us.

 

2)       You shall indemnify us against all actions costs (including cost of defending legal proceedings) claims proceedings and demands in respect of any infringement or alleged infringement by us of patent rights registered design copyright design rights or other industrial rights attributable to us complying with any of your special instructions or requirements relating to the Goods.

 

 14.  Your Insolvency

1)                   This Condition applied if:

i)                     you make any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

ii)                   an encumbrancer takes possession, or a receiver is appointed, of any of your property or assets; or

iii)                  you cease, or threaten to cease, to carry on business; or

iv)                 we reasonably apprehend that any of the events mentioned above is about to occur in relation to you and notify you accordingly.

 

2)                   If this Condition applies then, without prejudice to any other rights or remedy available to us we shall be entitled to suspend work, delay or withhold delivery under or cancel the Contract without any liability to you and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding and previous agreement or arrangement to the contrary.

 

15.  Notices

Any notice given hereunder must be in writing and may be effected both by facsimile transmission and by personal delivery or by registered mail postage and (subject, in each case, to proof that such notice was properly addressed and dispatched) and if effected by post shall be deemed to been received 48 hours after the date of posting.

 

16.  No Assignment

The Contract shall be personal to you and shall, not nor shall any rights under it be assigned by you without out written consent.

 

17.  No Waiver

No waiver by us of any breach of the Contract by you shall be considered as a waiver of any subsequent breach of the same or any other provision.

 

18. Governing Law

The Contract (and these Conditions) shall be governed by and construed in accordance with the laws of England.

 

19. Invalidity

In any provision of the Contract (or 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 the Contract (or of these Conditions) and the remainder of the provision in question shall not be affected thereby.