|Conditions of Use
|1. (i) In these conditions of sale:
(a) "Seller" means Paul Archibald trading as Brass Classics (which expression includes its successors and assigns)
(b) "Buyer" means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.
(c) "Goods" means the goods or materials which the Seller is to sell and the Buyer is to purchase pursuant to the Contract and includes where the context so admits any instalments or part of such goods or materials.
(d) "Contract" means the contract for the sale and purchase of the Goods between the Seller and the Buyer.
(e) "Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made.
(f) "person" includes any body corporate or unincorporate or any other organisation or legal entity, and words denoting the singular include the plural and vice versa.
(g) "Writing" and any similar expression includes facsimile transmission and comparable means of communication including electronic mail.
(h) any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended and re-enacted or extended from time to time.
(i) any reference to one gender shall include the other genders.
(ii) Unless otherwise agreed in writing by the Seller every order placed with and every quotation issued by the Seller shall be subject to these Conditions of Sale which shall override any terms or conditions stipulated, incorporated or referred to in the Buyer's order or elsewhere and these Conditions and any special terms and conditions agreed in writing by the Buyer and the Seller will constitute the entire agreement for the sale and or/supply and purchase of the Goods. If there is any conflict between these Conditions and any such special terms and conditions, the latter will prevail.
2. Where the delivery of Goods is to be made by instalments each delivery shall be treated as a separate contract and failure suspension or delay in any delivery or defects in the Goods delivered shall not entitle the Buyer to treat the Contract as a whole as repudiated.
3. (i) All delivery dates are estimates only and the Seller shall not be liable in damages for any delay in deliveries or failure to deliver nor shall the Buyer be entitled to refuse to accept delivery or terminate the Contract in the event of any such delay except where delay of an unreasonable length has occurred due to circumstances within the Seller's control. The following circumstances shall without limitation be deemed not to be within the Seller's control: Acts of God, war, riots, civil commotions, strikes, lock-outs, trade disputes or other industrial action, fires, breakdowns, interruptions of transport, Government action and delay in delivery or failure to deliver by the Seller's suppliers.
(ii) If the Seller fails to deliver the Goods (or any instalment) 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.
(iii) Wrongful failure or refusal by the Buyer to accept delivery of all or any of the Goods or to give the Seller proper delivery instructions shall constitute a repudiation of the Contract and, without prejudice to its other rights and remedies, the Seller shall be entitled to accept such repudiation or alternatively to store and insure the Goods at the Buyer's risk and expense. If the Goods shall subsequently be re-delivered to the Buyer, the Buyer shall be responsible for the cost of such re-delivery.
4.1 This clause 4 applies if:
4.1.1 the Buyer makes a 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
4.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
4.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
4.1.4 the Buyer commits a breach of any of the provisions of the Contract; or
4.1.5 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.
4.2 If this clause applies then, without limiting any other right or remedy available to the Seller, the Seller may 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 payble notwithstanding any previous agreement or arrangement
to the contrary.
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller may 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 Subject to any special terms agreed in writing the Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) within 28 days of the date of the Seller's invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:
5.3.1 cancel the contract or 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 the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 5% per annum above Barclays Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
6.1.1 in the case of Goods to be delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
6.1.2 in the case of Goods to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
6.2 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 the Buyer until the Seller has received in cash or cleared funds payent in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
6.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected, insured and identified as the Seller's property, but the Buyer may resell or use the Goods in the ordinary course of its business.
6.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller may at any time require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
6.5 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 moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) immediately become due and payable.
7. The Buyer shall inspect the Goods immediately upon delivery and shall within 14 days of such delivery give notice in writing to the Seller of any matter or thing by reason whereof the Buyer alleges that the Goods are not in accordance with the Contract whether as to quantity, quality or otherwise. If no such notice is served by the Buyer upon the Seller the Goods shall be deemed to be in accordance with the Contract in all respects and the Buyer shall be deemed to have accepted them.
8. Damage, shortage and pilferage in transit must be reported to the carriers in writing within three days after the delivery of the Goods and a copy of such report sent to the Seller within that period to enable (where applicable) the necessary claim to be made. In case of damage the Buyer must retain the damaged Goods and packing materials for inspection. In case of non-delivery within 14 days of date of despatch or in the case of exports within three days of the anticipated delivery date the Seller must be advised immediately. If the Buyers noncompliance with the above causes any subsequent claim to be refused by the carriers the entire loss shall be borne by the Buyer.
9. No contract between the Seller and the Buyer shall be a sale by sample by reason only of a sample having been provided for the Buyer's general guidance.
10.1 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller may 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), in which case the Seller shall have no further liability to the Buyer.
10.2 Except in respect of death or personal injury caused by the Seller's negligence, or liability for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (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 (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.
11. (i) The Seller hereby notifies the Buyer that the Seller has available information concerning the Goods and the Conditions recommended for safe handling which will be made available to the Buyer on request. The Buyer warrants that he has ordered the Goods for his business purposes and that he and all his employees and any other persons who may handle use or otherwise howsoever come into contact with the Goods are fully conversant with the nature and characteristics of the Goods, any risks attaching to their use or handling and all applicable safety and other regulations so as to be able to identify the Goods and store, use and handle them without causing injury or damage to themselves or any other person or machinery or material or any other property or asset whatsoever.
(ii) The Buyer shall ensure that all Goods received comply with their description before such Goods are used or supplied to any other person. Without prejudice to the foregoing before any product is used the label should be carefully read and current safety literature and information consulted. The Buyer should contact the Seller for updated advice and in any event must satisfy himself that the product is entirely suitable for his purpose.
(iii) The Buyer shall ensure that all Goods incorporated within or otherwise added to other goods components or products are so incorporated or added as to ensure that the Goods and final product comply in all respects with all applicable safety and other regulations.
(iv) The Buyer shall take such steps as are necessary or desirable to ensure that all information and instructions relevant to the Goods and their use are provided to any person using the Goods or likely to be affected by them. Without prejudice to the foregoing, the Buyer shall ensure that all packaging and instructions supplied to the Buyer remain with the Goods whenever they are the subject of any future supply.
(v) The Buyer shall not supply any Goods to any person unless the safety of the Goods at the time of such supply is such as persons generally are entitled to expect (as such words are construed for the purposes of Part 1 of the Consumer Protection Act 1987).
(vi) The Buyer shall on demand fully and effectively indemnify the Seller against all claims, demands and proceedings made or brought against the Seller by any third party or parties in relation to the Goods or their supply together with all expenses, costs (including legal
costs on a full indemnity basis), damage, losses and liabilities incurred by the Seller in connection with any such claims, demands or proceedings.
12. Delivery terms used in international transactions and used or incorporated into the Contract shall be interpreted in accordance with Incoterms. The Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
13. These Conditions of Sale and the Contract made pursuant thereto shall be subject to and construed in accordance with English Law and all claims and disputes and legal proceedings arising out of or in connection therewith shall be subject to the jurisdiction of the Courts of England provided that the Buyer agrees for the exclusive benefit of the Seller that the Seller may bring any legal action or proceeding or pursue any claim, remedy or legal process available to it against the Buyer or its assets in the Courts of England or any other place or country as the Seller may in its absolute discretion decide. The Buyer irrevocably accepts for himself and his assets generally and unconditionally the jurisdiction of such Courts.
14. (i) The various provisions of the Contract are severable if any provision shall be held to be invalid or unenforceable in whole or in part by any court of competent jurisdiction or any other competent authority such invalidity or unenforceability shall not affect the remaining provisions of the Contract.
(ii) No waiver by the Seller of any breach of the Contract by the Buyer shall be construed as a waiver of any subsequent breach of the same or any other provision and no such waiver shall be effective unless it is in writing signed by an authorised representative of the
15. The price of the goods shall be agreed in writing between the Seller and the Buyer. Unless otherwise agreed in writing, all prices are given by the Seller on an ex-works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller's premises, the Buyer shall be liable to pay the Seller's charges for transport, packaging and insurance. The price of the Goods is (unless expressly stated otherwise by the Seller) exclusive of any applicable value added tax and any other taxes or duties which shall be charged at the applicable rate and which the Buyer shall be additionally liable to pay to the Seller at the same time as the price of the Goods.
16. The Seller reserves the right to assign or sub-contract the performance of any of its obligations under the Contract or any part thereof and/or to assign or charge the benefit of its rights under the Contract in whole or in part, but the Buyer may not assign, sub-contract, charge or otherwise deal with any of his rights or obligations under the Contract without the Seller's prior written consent.
17. (i) The Buyer shall at its own risk and cost be responsible for complying with all legislation or regulations (including obtaining at his own cost all and any necessary licences, permissions and authorities) governing the importation of the Goods into any country of destination outside the United Kingdom of Great Britain and Northern Ireland and for payment of all taxes and duties in relation thereto and shall indemnify the Seller against all loss, damage, liability or expense incurred by the Seller in respect of the Goods supplied without a valid import licence.
(ii) Delivery of the Goods or any instalment thereof shall be subject to the granting of any necessary export licence, authority or permission the granting of such matters being at the assistance of the Buyer. The Buyer shall render such assistance and information to the Seller as the Seller may request to enable it to apply for or obtain any necessary export licence, authority or permission in relation to the Goods. The Seller shall not be liable for any loss, damage, liability or expense whatsoever arising from any delay in
obtaining or failure to obtain such export licence, authority or permission.
18. Any notice or claim which may be required to be served in respect of the Contract shall be in writing and shall be deemed to have been effectively served by being handed to the Buyer, if he is an individual, or if it is personally delivered or sent by pre-paid First Class post, facsimile transmission or comparable means of communication incuding electronic mail to the Buyer at his address stated in the Contract or his address last known to the Seller, or as the case may be to the Seller at its address stated in the Contract or its registered office.