BANISTER BROS. & CO. LIMITED GENERAL TERMS OF BUSINESS
1 GENERAL
The terms contained in this contract note.
-
- Can only be varied by a document in writing signed by a director of or authorize signatory for the party to be bound by the variation.
- Prevail over any conflicting terms or stipulations contained in any document originated by the Buyer (whether dated before or after the date of this contract note)
- In this contract note the Seller shall mean Banister Bros. & Co. Limited. And the Buyer shall mean the person, firm or company to whom the contract note is addressed.
2 DELIVERY
2.1 Unless otherwise agreed, delivery is to be made at the Seller’s premises and takes place when the goods are loaded onto transport for transmission to or to the order of the Buyer or four days after the Seller notifies the Buyer that they are ready for collection, whichever is the earlier.
2.2 No stipulation as to time or period of delivery is of the essence of the contract.
2.3 The Seller quotes delivery dates in good faith but except where term 2.4 applies they are for guidance only and the Seller’s only obligation as to time of delivery is to deliver the goods within a reasonable time.
2.4 Where a delivery date or period is referred to in this contract note as “guaranteed” then subject to terms 10 the Seller shall deliver on or before the date or within the period specified, without prejudice to term 2.2.
2.5 Where the Seller has reason to believe that between the date of this contract note and delivery the financial position of the Buyer and its credit worthiness may have deteriorated then, upon the Seller notifying the Buyer in writing of the relevant reason the Seller’s obligation to deliver any further goods shall terminate and the Buyer shall be liable to pay for all goods already delivered pursuant to this agreement and upon payment in advance in full within 30 days by the Buyer the Seller shall deliver any further goods manufactured specifically to the order of the Buyer.
3 INSTALMENTS
3.1 Where the rate of delivery is not specified in the contract note, the Seller may deliver and the buyer shall accept and pay for the goods in reasonable instalments.
3.2 No breach of contract by the Seller in relation to any instalment of the goods entitles the Buyer to treat the whole contract as repudiated even if it entitles him to reject that instalment and for all purposes except those of terms 7 (as to ownership) and 13 ( as to the Seller’s maximum liability for certain breaches) each instalment is to be regarded as the subject of a separate contract.
4 PRICES
4.1 All prices are shown exclusive of VAT unless otherwise indicated. The Buyer shall pay any applicable VAT in addition to the contract price.
4.2 The Buyer shall pay the Seller’s reasonable extra charges (including a reasonable element of profit) in respect of
4.2.1 any special arrangements made at the Buyer’s request in order to expedite delivery
4.2.2 any experimental work required by the Buyer and any work done or materials supplied in providing trial samples
4.2.3 storage where performance of the contract is suspended under term 11.2 or where the Buyer fails to collect the goods or (where appropriate) give instructions for their delivery for 4 days after the Seller has notified him that they are ready for collection.
5 PAYMENT
5.1 Unless otherwise agreed the Seller is entitled to invoice the price of the goods or (where appropriate) any reasonable instalment of them together with any applicable VAT to the Buyer when the goods are (or any such instalment is) ready for collection or dispatch, and the invoice counts as notice to the Buyer that the goods are so ready.
5.2 The Buyer shall pay for the goods in accordance with the credit terms (if any) mentioned in the contract note. If none are mentioned, unless otherwise agreed in writing or indicated on the invoice the Buyer shall pay for the goods on delivery.
5.3 Any agreed credit period ceases and the contract price becomes immediately due and payable in full if any of the events mentioned in term 7.3 occurs.
5.4 The Buyer shall pay interest to the Seller on any overdue account at the rate of 2% per month from the date of which it became due until payment, whether or not judgement has been entered for the debt.
6 RISK
The risk in the goods passes to the Buyer
6.1 where the Seller agrees to arrange transport when the goods are delivered ready for unloading at the agreed destination.
6.2 in all other cases on delivery (as defined by term 2.1)
7 OWNERSHIP
7.1. Subject to the power given to the Buyer in term 7.2 absolute legal and beneficial ownership of the goods remains in the Seller until all invoices relating to the goods and to any other goods previously delivered by the Seller to the Buyer, have been paid in full. Until ownership passes the Seller retains the right of disposal of the goods and the Buyer holds them as the Seller’s bailee in a fiduciary relationship to the Seller.
7.2 Subject to term 7.3 the Buyer may use or sell the goods in the ordinary course of his business even though any invoice relating to them has not been paid, and ownership of any goods so used or sold passes to the Buyer on use or sale.
7.3 If the Buyer
7.3.1 makes default in payment of any invoice relating to the goods for 7 days after it has become due or
7.3.2 (whether or not any agreed period of credit has expired) has any distress or execution levied on its assets or
7.3.3 passes or calls a meeting to pass a resolution for winding up
7.3.4 becomes subject to a winding-up or administration order or
7.3.5 has a receiver appointed of any of the Buyer’s assets
then the Buyer shall forthwith cease to use or otherwise dispose of any of the goods not then paid for and shall upon demand forthwith deliver up to the Seller any of the Seller’s goods remaining in the Buyer’s possession. On making such demand the Seller is entitled without incurring any liability to the Buyer to enter the Buyer’s premises, inspect the Buyer’s stocks and remove and re-sell such as the Seller’s goods as are to be found there. The Buyer’s liability for the price of any goods so removed shall be limited to the difference between the price and the amount realized on re-sale less any expenses incurred in removal and re-sale.
7.4 Nothing in this clause gives the Buyer the right to return goods without Seller’s consent.
8 TRANSPORT
Where the Seller agrees to arrange transport of the goods.
8.1 the Seller is entitled to arrange carriage with any carrier whose conditions of carriage are no less advantageous to the consignor than current Road Haulage Association conditions.
8.2 the Buyer shall pay the Seller’s expenses in connection with the carriage.
8.3 The Buyer shall notify the Seller in writing of any claim for non-delivery of or for loss of or damage to the goods in transit within 7 days of the invoice. The Seller’s liability in respect of any such matter is limited
8.3.1 where the loss or damage occurs during transit on the Seller’s own vehicle, at the Seller’s option to replacement of the goods or refund of the price paid by the Buyer for the goods so lost or damaged
8.3.2 where 8.31 is not applicable, to any amounts the Seller recovers from the carrier of the goods. The Seller shall use its reasonable endeavours at the cost of the Buyer to make the best practicable recovery
9 GENERAL LIEN
9.1 Without prejudice to any particular lien attaching to the goods at common law the Seller has a general lien on all property of the Buyer coming into the Seller’s possession in respect of all sums owing to the Seller from the Buyer under this or any other contract.
9.2 Where any of the events mentioned in Term 7.3 have happened the Seller may after giving 7 days notice at its absolute discretion sell or otherwise deal with any property subject to its particular or general lien and to apply the net proceeds (after deducting any costs of transport and sale) towards payment of any amounts owing to the Seller from the Buyer, accounting to the Buyer for any balance then remaining.
9.3 The Buyer shall indemnify the Seller against all claims by third parties in respect of anything done in good faith under this term and the Seller is to be presumed to have acted in good faith unless the contrary is proved. (General terms of business continued overleaf)
10 FORCE MAJEURE
10.1 Where the Seller is prevented by circumstances beyond its control from performing its obligations under this contract, it may on giving written notice to the Buyer suspend delivery while those circumstances subsist, and subject to term 11.1 any agreed delivery date or period is to be regarded as extended by the period of suspension accordingly.
10.2 Term 10.1 applies to all circumstances beyond the Seller’s control, examples of which are fire, flood, theft, explosion, breakdown, strike, lock-out and the inability to obtain necessary supplies or services.
10.3 The Seller is to be regarded as prevented from performing its obligations if by reason of circumstances beyond its control it could only do so by incurring additional expenditure which is substantial having regard to the contract price and the Seller’s planned margin of profit.
11 SUSPENSION AND CANCELLATION
11.1 Where any period of suspension of deliveries under term 10.1 continues for more than 6 months, either party may cancel this contract by written notice without incurring any liability to the other, except (in the case of the Buyer) as set out in term 11.3 below.
11.2 If any payment due from the Buyer to the Seller for goods supplied under this or any other contract is in arrear, the Seller may suspend further deliveries under this or any other contract, and if the payment is not made within 7 days after the Seller serves on the Buyer a demand in writing referring to this term the Seller may cancel this or any other contract without incurring any liability to the Buyer. The Buyer’s failure to comply with a demand for payment referring to this term is to be regarded as a repudiation of the contract, and the Seller is entitled to damages accordingly.
11.3 In all cases of cancellation under term 11 the Buyer shall forthwith on cancellation take and pay for any goods already manufactured and any materials reasonably purchased by the Seller for the purpose of the contract.
12 QUALITY, FITNESS FOR PURPOSE AND TECHNICAL SPECIFICATION
12.1 The Seller is to be presumed ignorant of any particular purpose or market for which the goods are required, or any particular conditions under which they are to be used, unless that purpose or market is or those conditions are expressly stated in the contract note.
12.2 Except as expressly provided in the contract note, the bargain between the Buyer and the Seller concerning the goods contains no condition, warranty or term (whether in each case express implied statutory or otherwise) as to the quality or fitness of the goods for any particular purpose, or as to the correspondence of the goods in quality with any sample or description and the Buyer shall not rely on any representation as to any such matter in entering into this contract unless the representation is repeated or otherwise contained in the contract note.
12.3 This term applies where the contract between the Buyer and the Seller specifies certain technical requirements for the goods , and after the contract is made the Seller notifies the Buyer in writing that except to the extent specified in the notice the Seller is unable to achieve those requirements in practice, or is unable to do so in relation to some technically distinct portion of the contract.
12.4 Where term 12.3 applies, the Buyer may within seven days after service of the Seller’s notice cancel the contract in relation to the goods to which the Seller’s notice relates by notice to the Seller to that effect, and in that event the Buyer has no further liability to the Seller in relation to those goods, but the Buyer’s liability in relation to the remainder of the contract is unaffected.
12.5 If the Buyer does not serve a notice of cancellation under term 12.4 within the time specified, the contract is to be regarded as varied in relation to the goods referred to in the Seller’s notice by the substitution of the technical specification which the Seller is (according to its notice) able to achieve for the original technical requirements of the contract.
13 CLAIMS AND ALLOWANCES
13.1 Where the goods or some part or parts of them do not correspond with the contract whether through failure to correspond with sample or description or by reason of defective quality or design or of unfitness for any particular purpose (whether or not as a result of the Seller’s negligence).
13.1.1 The Buyer shall notify the Seller as soon as practicable and where possible afford the Seller an opportunity to inspect the goods before they have been further cut, processed, treated or otherwise dealt with.
13.1.2 The Buyer shall at the Seller’s request and cost use its best endeavours to dispose of the defective goods at the best price reasonably obtainable or (at the Seller’s option) shall return them to the Seller.
13.1.3 If the Seller and the Buyer agree an allowance in respect of such goods, the allowance is to be treated as accepted in full and final settlement of all claims in respect of any such matter.
13.1.4 The Seller’s liability (if any) in respect of any such matter does not exceed the difference between the value of the defective goods and the aggregate of their contract price and the cost to the Buyer of such cutting, processing, treatment or making up as the Buyer proves to have been carried out by him or on his behalf before the fault, error or defect could reasonably have been detected. The Seller is not liable to compensate the Buyer for any other kind of loss, whether direct or indirect, consequential or otherwise.
13.1.5 In any event the Seller’s liability to the Buyer in respect of the aggregate of all claims in respect of such matters arising out of a single contract does not exceed £20,000 or 10% of the contract price whichever is the greater.
13.2 Where the Buyer supplies inconsistent instructions on any matter relating to the manufacture or supply of the goods, the Seller is not liable for any defect, error or mistake which results from the Seller following any such instructions in good faith.
14 INTELLECTUAL PROPERTY
The Buyer shall indemnify the Seller against all liability(including the cost of defending unsuccessful actions) arising as a result of the Seller doing work or supplying goods in accordance with the Buyer’s specification, instructions or design and which infringes or is alleged to infringe any patent, registered design, trademark, copyright or other intellectual property rights of any third party.
15 CONCESSIONS
Any concession, latitude or waiver allowed by either party to the other at any time does not prevent that party from subsequently exercising his full rights under this contract in other respects.
16 SET OFF
The Buyer is not entitled to set off any claim against payment of the contract price or other amounts owing to the Seller.
17 NOTICES
Any notice required to be given by either party to the other under this contract is to be in writing and is sufficiently served if sent by pre-paid ordinary first class letter or by E Mail or facsimile transmission and is to be taken as having been received (unless the contrary is proved) at the commencement of business on the second day after posting in the case of a letter and at that time on the day after transmission in the case of an E Mail or facsimile transmission.
18 ARBITRATION
The parties will submit any dispute of a technical nature arising from this contract and which is not settled between them to an arbitrator agreed upon between the parties, or in default of agreement appointed by the President for the time being of the CIA ( Chartered Institute of Arbitrators) on the application of either of them. No such submission shall affect the date upon which any payment is due to the Seller.
19 ENGLISH LAW
This contract is governed by and is to be construed and interpreted exclusively in accordance with English Law and both parties submit to the non-exclusive jurisdiction of the English Courts.
