Seller for the sale of goods or whose order for the goods is accepted by the Seller. “Goods” means the goods (including any installment of the goods or any parts of them) which the Seller is to supply in accordance with these Conditions. “Seller” means Imagro UK Ltd registered in England under number 6817219. “Conditions” means the standard terms and conditions of sale set out in this document to which all Contacts shall be subject and (unless the context requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller. No variation to these Conditions shall be binding unless agreed in writing between the authorized representatives of the Buyer and the Seller. “Contract” means the contract for the purchase and sales of goods. “Writing” includes cable, facsimile transmission and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which 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.
2.2 The Seller’s employees or agents are note authorized 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, nay such representations which are not so confirmed.
2.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document of information issued by the Seller, shall be subject to correction without any liability on the part of the Seller.
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorized representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
4.1 The price of the Goods shall be the Seller’s quoted price. All prices quoted are valid for 7 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer, unless otherwise specified by the buyer.
4.2 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 cost of labour, materials or other cost of manufacture) any change in delivery dates, quantities or specification 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.
4.3 The price is exclusive of any applicable Value Added Tax which the Buyer shall be additionally liable to pay to the Seller.
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to 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.
5.2 The Buyer shall pay the price of the Goods by the due date as shown on the invoice, provided the delivery has taken place. The time of payment of the price shall be of the essence of the Contract.
5.3 If the Buyer fails to make any payment on the due date then without prejudice to any other right to remedy available to the Seller, the Seller shall be entitled to:-5.3.1 cancel the Contract of suspend any further deliveries to the Buyer.
5.3.2 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); and
5.3.3 Charge interest on the outstanding amount (both before and after any judgment) at the statutory rate of interest applying to late payment from the due date until the outstanding amount is paid in full.
6.1 Delivery of the Goods shall be made by the Buyer collection the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place of delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused
Time for delivery shall not be of the essence unless previously agreed by the Seller in writing.
6.3 Where delivery of the Goods is to be made by the Seller in bulk, the Seller reserves the right to deliver up to 10 per cent more of 10 per cent less than the quantity ordered and the quantity delivered shall be the quantity invoiced.
6.4 Where delivery is to be made by installments, each delivery shall be deemed for such purpose to be the subject of a separate contract and any failure whatsoever by the seller in respect of any one delivery shall not entitle the buyer to repudiate the contract or any installments remaining to be delivered there under.
6.5 If 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 market available) or similar goods to replace those not delivered over the price of the Goods.
6.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may;-
6.6.1 Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage, or
6.6.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under Contract or charge the Buyer for any shortfall below the price of the Contract;
6.6.3 Charge the Buyer with any abortive transport costs.
6.7 Any claim arising from damage, delay or partial loss goods in transit must be made in writing to the Seller and to the carrier so as to reach them within three working days of delivery. Claims for non-delivery must be made in writing to the Seller and the carrier so as to reach them within seven working days of the dispatch of the Goods.
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer in the case of Goods to be collected at the time agreed for collections and in the case of Goods to be delivered at the time agreed for delivery, however any damages need to be reported within 7days of delivery.
7.2 The Goods must be paid for by the Buyer notwithstanding damage thereto or destruction thereof howsoever caused after the passing of risk. No claim for damage destruction or shortfall shall be made against the Seller after the passing of risk.
7.3 Notwithstanding delivery and the passing of risk in the Goods or any other provisions of the Conditions the property in 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;-
7.3.1 The Goods and
7.3.2 All other goods sold and/or agreed to be sold by the Seller to the Buyer at the date of delivery of the Goods or at any time thereafter.
7.4 Until such time as the property in the Goods passes to the Buyer;-
7.4.1 The Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from all other goods in the possession of the Buyer and/or third parties, and the Buyer shall keep the Goods properly stored and protected and insured and identified as the Seller’s property.
7.4.2 The Buyer shall be entitled to sell the Goods in the ordinary course of business in the name of the Buyer on condition that:-
(a) Such sales is bona fide on arm’s length and at full market value
(b) Vis a Vis the sub-Buyer the Buyer sells as principal,
And © such sale shall give rise to no obligations whatsoever contractual or otherwise on the Seller.
7.4.3 For the avoidance of doubt , it is hereby expressly declared that, save in so far as these Conditions expressly provide to the contrary, all the normal incidents associated with fiduciary relationship shall apply. In particular, vis a vis the seller, the Buyer holds and sells as fiduciary and, as such fiduciary, the Buyer:-
(a) Shall account to the Seller for the proceeds of insurance and of sale of the Goods whether tangible or intangible and
(b) Shall keep all such proceeds separate from any monies or property of the Buyer and third parties and in the case of tangible proceeds shall keep such proceeds properly stored, protected and insured.
7.4.4 If the Goods have not been sold by the Buyer as aforesaid the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and if the Buyer fails to do so forthwith, the Seller shall be entitled to (and the Buyer hereby irrevocably authorizes the Seller to) enter upon any premises of the Buyer or of any third party where the Goods are stored or are thought by the Seller to be stored, and to repossess and remove the Goods.
7.5 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.
7.6 Without prejudice to the foregoing none of the Goods are supplied on a “sale or return” basis.
8.1 Subject to the Conditions set out below the Seller warranty that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 3 months from delivery.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specifications supplied by the Buyer;
8.2.2 the Seller 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 the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval;
8.2.3 The Seller shall be under no liability under the above 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.
8.2.4 The above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as given by the manufacturer to the Seller.
8.3 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), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) that statutory rights of the Buyer are not affected by these Conditions.
8.5 Any claim by the Buyer which Is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is reused by the Buyer) be notified to the Seller in writing within 7 days from the date of the delivery or (where the defect or failure was not apparent on reasonable inspection) within 7 days after discovery of the defect or failure. If delivery is not refused and the Buyer does not notify the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the prices if the Goods had been delivered in accordance with the Contract.
8.6 Where any valid claim in respect of the Goods which is based on any defect in quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these 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 Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.
8.7 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at
Common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit of 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 the Buyer, except as expressly provided in these Conditions.
8.8 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control.
9.1 This clause applies if:
9.1.1 The Buyer makes any voluntary arrangement with his creditors, or delivers to an intended nominee a proposal for such an arrangement or become the subject of an administration petition or order, or (being a company) becomes the subject of a winding up petition or goes into liquidation (other than for the purposes of amalgamation or reconstruction) or if any event equivalent to the above occurs or
9.1.2 An encumbrance take possession or a Receiver is appointed of any of the Property or assets of the Buyer or
9.1.3 The Buyer ceases or threatens to cease to carry on business or
9.1.4 The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer, and notifies the Buyer accordingly or
9.1.5 The buyer is in breach of clause 5.2 hereof
9.1.6 The Buyer exceeds his credit limit or if an order placed by the Buyer would cause the credit limit to be exceeded.
9.1.7 The Buyer does anything or fails to do anything which will entitle any person to present a bankruptcy or winding up petition.
9.2 If this Clause 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 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.
9.3 If the Buyer reasonably apprehends that any of the events mentioned in Clause 9.1.1 to 9.1.3 above (inclusive) is about to occur, the Buyer shall notify the Seller of this fact forthwith.
9.4 If any of the events mentioned in Clause 9.1.1 to 9.1.3 above (inclusive) occurs, and if the property in the Goods has not passed to the Buyer in accordance with Clause 7.3 above, the Buyer’s power of sale of the Goods shall terminate forthwith, and without prejudice to any other right or remedy of the Seller the provisions of Clauses 9.5.1 9.5.3 below (inclusive) shall apply.
9.5 If any of the events mentioned in Clause 9.1.4 to 9.1.7 above (inclusive) occurs and if the property in the Goods has not passed to the Buyer in accordance with Clause 7.3 above, without prejudice to any other right or remedy available to the Seller, the Seller may be notice in writing revoke the Buyer’s power of sale of the Goods whereupon
9.5.1 The Buyer shall inform the Seller of the whereabouts of all Goods which have not been sold by the Buyer in accordance with Clause 7.4.2 above.
9.5.2 The Buyer shall place all such Goods at the disposal of the Seller and
9.5.3 The Seller shall be entitled to ( and the Buyer hereby irrevocably authorizes the Seller to ) enter upon any premises of the Buyer or any third party where such Goods are stored or are thought by the Seller to be stored, and to repossess and remove such Goods.
9.6 For the purposes of Clauses 9.3, 9.4 and 9.5 above and any sub-Clauses thereof the definition of “the Buyer” shall be extended to include a Liquidator Receiver Administrator or Trustee in Bankruptcy of the Buyer or any other similar appointment made pursuant to the provisions of the Insolvency Act 1986
10.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party as its’ registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same of any other provision.
10.3 If any provision of 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 these Conditions and the remainder of the provision is question shall not be affected threreby.
10.4 The Contract shall be governed by the laws of England.