1.
Application of Conditions
1.1 The
Seller shall sell, and the Buyer shall purchase the Goods in accordance with
any quotation or offer of the Seller which is accepted by the Buyer, or any
order of the Buyer, which is accepted by the Seller,
1.2 These
Conditions shall govern the Contract to the exclusion of any other terms and
conditions subject to which any such quotation is accepted or purported to be
accepted, or any such order is made or purported to be made, by the Buyer.
2. Interpretation
2.1 In
these Conditions:-
"Business
Day "means any day other than a Saturday, Sunday or bank holiday.
"the
Buyer" means the person who accepts a quotation or offer of the Seller for
the sale of the Goods or whose order for the Goods is accepted by the Seller.
"the
Contract" means the contract for the purchase and sale of the Goods under
these conditions.
"these
Conditions" means the standard terms and conditions of sale set out and
(unless the context otherwise requires) includes any special terms and
conditions agreed in writing between the Buyer and the Seller.
"the
Delivery means the date on which the Goods are to be delivered as Date
"stipulated in the Buyer's order and accepted by the Seller.
"the
Goods” means the goods (including any instalment of the goods or any parts for
them) which the Seller is to supply in accordance with these Conditions.
"month"
means a calendar month.
"the
Seller" means PCL Direct Group Ltd, a company registered in England
under 09726138
"writing"
includes any communications effected by telex, facsimile transmission,
electronic mail, or any comparable means.
2.2 Any
reference in these Conditions to a statute or a provision of a statute shall be
construed as a reference to that statute or provision as amended, re-enacted,
or extended at the relevant time.
2.3 The
headings in these Conditions are for convenience only and shall not affect
their interpretation.
3. Basis of Sale
3.1 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.
3.2 No
variation to these Conditions shall be binding unless agreed in writing between
the authorised representatives of the Buyer and the Seller.
3.3 Sales
literature, price lists and other documents issued by the Seller in relation to
the Goods are subject to alteration without notice and do not constitute offers
to sell the Goods which are capable of acceptance. An order placed by the Buyer
may not be withdrawn cancelled or altered prior to acceptance by the Seller and
no contract for the sale of the Goods shall be binding on the Seller unless the
Seller has issued a quotation which is expressed to be an offer to sell the
goods or has accepted an order placed by the Buyer by whichever is the earlier
of:-
3.4 Any
typographical, clerical, or other accidental errors or omissions 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.
4. Orders and Specifications
4.1 The
specification for the Goods shall be those set out in the Seller's sales
documentation unless varied expressly in the Buyer's order (if accepted by the
Seller).The Goods will only be supplied in the minimum units (or multiples)
stated in the Seller's price list or in multiples of the sales outer as specified.
Orders received for quantities other than these will be adjusted accordingly,
illustrations, photographs or descriptions whether in catalogues, brochures,
price lists or other documents issued by the Seller are intended as a guide
only and shall not be binding on the Seller.
4.2 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 or
regulatory requirements or, where the Goods are to be supplied to the Seller's
specification, which do not materially affect their quality or performance.
5.
Price
5.1 The
price of the Goods shall be the price listed in the seller’s price schedule
current at the date of acceptance of the Buyer's order or such other price as
may be agreed in writing by the Seller and the Buyer.
5.2 Where
the Seller has quoted a price for the Goods other than in accordance with the
Seller's published price list the price quoted shall be valid for 3 days only
or such lesser time as the Seller may specify.
5.3 The
Seller reserves the right, by giving notice to the Buyer at any time before
delivery, to increase the price of the Goods to reflect any increase in the
cost to the Seller which is due to 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,
materials or other costs of manufacture), any change in delivery dates,
quantities or specifications for the Goods which is requested by the Buyer, or
any delay caused by any instructions of the Buyer or failure of the Buyer to
give the Seller adequate information or instructions.
5.4 The
price is exclusive of any applicable value added tax excise, sales or taxes or
levies of a similar nature which are imposed or charged by any competent fiscal
authority in respect of the Goods, which the Buyer shall be additionally liable
to pay to the Seller.
6. Payment
6.1 Subject
to any special terms agreed in writing between the Buyer and the Seller, the
Seller shall 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.
6.2 The
Buyer shall pay the price of the Goods without any other deduction credit or
set off within 30 days of the date of the Seller's invoice or otherwise in
accordance with such credit term as may have been agreed in writing between the
Buyer and the Seller in respect of the Contract. Payment shall be made on the
due date notwithstanding that delivery may not have taken place and/or that the
property in the Goods has not passed to the Buyer. The time for the payment of
the price shall be of the essence of the Contract.
6.3 All
payments shall be made to the Seller as indicated on the form of acceptance or
invoice issued by the Seller.
6.4 The
Seller is not obliged to accept orders from any customer or buyer who has not
supplied the Seller with references satisfactory to the Seller; if at any time
the Seller is not satisfied as to the creditworthiness of the Buyer it may give
notice in writing to the Buyer that no further credit will be allowed to the
Buyer in which event no further goods will be delivered to the Buyer other than
against cash payment and notwithstanding Clause 6.2 of these conditions, all
amounts owing by the Buyer to the Seller shall be immediately payable in cash.
7. Delivery
7.1 Delivery
of the Goods shall be made by the Seller delivering the Goods to the place in
the United Kingdom specified in the Buyer's order and/or the Seller's
acceptance as the location to which the Goods are to be delivered by the Seller
or, if no place of delivery is so specified, 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.
7.2 The
Delivery Date is approximate only and time for delivery shall not be of the
essence unless previously agreed by the Seller in writing. The Goods may be
delivered by the Seller in advance of the Delivery Date upon giving reasonable
notice to the Buyer.
8. Non-Delivery
8.1 If
the Seller fails to deliver the Goods or any of them on the Delivery Date other
than for reasons outside the Seller's reasonable control or the Buyer's or its
carrier's fault:-
If
the Seller delivers the Goods at any time thereafter the Seller shall have no
liability in respect of such late delivery.
If
the Buyer gives written notice to the Seller within 3 Business Days after the
Delivery Date and the Seller fails to deliver the Goods within 3 Business Days
after receiving such notice the Buyer may cancel the order and the Seller's
liability shall be limited to the excess (if any) of the cost of the Buyer (in
the cheapest available market) of similar goods to those not delivered over the
price of the Goods not delivered.
9. Inspection/Shortage
9.1 The
Buyer is under a duty whenever possible to inspect the Goods on delivery or on
collection as the case may be.
9.2 Where
the Goods cannot be examined the carriers note or such other note as
appropriate shall be marked "not examined”.
9.3 The
Seller shall be under no liability for any damage or shortages that would be
apparent on reasonable careful inspection if the terms of this clause are not
complied with and, in any event will be under no liability if a written
complaint is not delivered to the Seller within5days of delivery detailing the
alleged damage or shortage.
9.4 In
all cases where defects or shortages are complained of the Seller shall be
under no liability in respect thereof unless an opportunity to inspect the
Goods is supplied to the Seller before any use is made thereof or any
alteration or modification is made thereto by the Buyer.
9.5 Subject
to condition 9.3 and condition 9.4, the Seller shall make good any shortage in
the Goods and where appropriate replace any goods damaged in transit as soon as
it is reasonable to do so, but otherwise shall be under no liability whatsoever
arising from such shortage or damage.
10. Risk
and Retention of Title
10.1 Risk
of damage to or loss of the Goods shall pass to the Buyer at:
10.2 Notwithstanding
delivery and the passing of risk in the Goods, or any other provision of these
Conditions, legal and beneficial title of 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.
10.3 Until
payment has been made to the Seller in accordance with these Conditions and
title in the Goods has passed to the Buyer, the Buyer shall be in possession of
the Goods as bailee for the Seller and the Buyer shall store the Goods
separately and in an appropriate environment, shall ensure that they are
identifiable as being supplied by the Seller and shall insure the Goods against
all reasonable risks.
10.4 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 money owing by the Buyer to the Seller shall
(without prejudice to any other right or remedy of the Seller) forthwith become
due and payable.
10.5 The
Seller reserves the right to repossess any Goods in which the Seller retains
title without notice. The Buyer irrevocably authorises the Seller to enter the
Buyer’s premises during normal business hours for the purpose of repossessing
the Goods in which the Seller retains title and inspecting the Goods to ensure
compliance with the storage and identification requirements of sub-clause 10.4.
10.6 The
Buyer’s right to possession of the Goods in which the Seller maintains legal
and beneficial title shall terminate if.
The
Buyer commits or permits any material breach of his obligations under these Conditions.
The
Buyer enters into a voluntary arrangement under Part 1 of the Insolvency Act
1986, or any other scheme or arrangement is made with his creditors.
The
Buyer is or becomes the subject of a bankruptcy order or takes advantage of any
other statutory provision for the relief of insolvent debtors.
The
Buyer convenes any meeting of its creditors, enters into voluntary or
compulsory liquidation, has a receiver, manager, administrator or
administrative receiver appointed in respect of its assets or undertaking or
any part thereof, any documents are filed with the court for the appointment of
an administratorin respect of the
Buyer, notice of intention to appoint an administrator is given by the Buyer or
any of its directors or by a qualifying floating charge-holder (as defined in
paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed
or petition presented to any court for the winding up of the Buyer or for the
granting of an administration order in respect of the Buyer, or any proceedings
are commenced relating to the insolvency or possible insolvency of the Buyer.
11.
Assignment
11.1 The
Seller may assign the Contract or any part of it to any person, firm, or
company.
11.2 The Buyer shall not be entitled to assign the Contract
or any part of it without the prior written consent of the Seller.
12.
Defective Goods
12.1 If
on delivery any of the Goods are defective in any material respect and either
the Buyer lawfully refuses delivery of the defective Goods or, if they are
signed for on delivery "condition and contents unknown" the Buyer
gives written notice of such defect to the Seller within three business days of
such delivery, the Seller shall at its option:-
The
Seller shall have no further liability to the Buyer in respect thereof and the
Buyer may not reject the Goods if delivery is not refused, or notice given by
the Buyer as aforesaid.
12.2 No
Goods may be returned to the Seller without the prior agreement in writing of
the Seller. Subject thereto any Goods returned which the Seller is satisfied
were supplied subject to defects of quality or condition which would not be
apparent on inspection shall either be replaced free of charge or, at the
Seller's sole discretion the Seller shall refund or credit to the Buyer the
price of such defective Goods, but the Seller shall have no further liability
to the Buyer.
12.3 The
Seller shall be under no liability in respect of any defect arising from fair
wear and tear, or any wilful damage, negligence, subjection to normal
conditions, failure to follow the Seller's instructions (whether oral or in
writing), misuse or alteration of the Goods without the Seller's approval, or
any other act or omission on the part of the Buyer, its employees, or agents or
any third party.
13.
Buyer's Default
13.1 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:-
13.2 This
condition applies if:-
13.3 If
Condition 13.2 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.
14.
Limitation of Liability
14.1 Subject
to condition 7, condition 8 and condition 13, the following provisions set out
the entire financial liability of the Seller (including any liability for the
acts or omissions of its employees, agents and sub-contractors) to the Buyer in
respect of:
14.2 All
warranties, conditions and other terms implied by statute or common law (save
for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to
the fullest extent permitted by law, excluded from the Contract.
14.3 Nothing
in these conditions excludes or limits the liability of the Seller:
14.4 Subject
to condition 14.2 and condition 14.3:
the
Seller's total liability in contract, tort (including negligence or breach of
statutory duty), misrepresentation, restitution or otherwise, arising in
connection with the performance or contemplated performance of the Contract
shall be limited to the Contract price; and
the
Seller shall not be liable to the Buyer for any pure economic loss, loss of
profit, loss of business, depletion of goodwill or otherwise, in each case
whether direct, indirect, or consequential, or any claims for consequential
compensation whatsoever (howsoever caused) which arise out of or in connection
with the Contract.
15.
Confidentiality, Publications and Endorsements
15.1 The
Buyer undertakes to the Seller that:-