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1 Definitions
1.1 In these Conditions the following words have the following meanings:-
“the Company” means Jack Pennington Limited company number 1168331
“the Goods” means the goods (including any instalment of the goods or any part of them) which the Company is to supply to the Buyer in accordance with these Conditions
“the Buyer” means the person firm or company who accepts a quotation of the Company for the sale of the Goods or whose order for the Goods is accepted by the Company on the Conditions
“the Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Company
“the Contract” means the contract for the purchase and sale of the Goods
“Writing” includes facsimile transmission, e-mail 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.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 Basis of the sale
2.1 The Company shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Company which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Company, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
2.2 No variation to these Conditions shall be binding unless agreed in Writing and expressed as such between the authorised representatives of the Buyer and the Company.
2.3 The Company's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company 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.
2.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3 Orders and specifications
3.1 Any order placed by the Buyer comprises an offer and is subject to acceptance by the Company and if placed orally must be confirmed in writing if requested by the Company.
3.2 The Buyer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Company's quotation.
3.4 The Company 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 requirements or, where the Goods are to be supplied to the Company's specification, which do not materially affect their quality or performance.
3.5 No order which has been accepted by the Company may be cancelled by the Buyer except with the agreement in Writing of the Company and on terms that the Buyer shall indemnify the Company in full against all loss (including loss of profit), costs (including the costs of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
3.6 The Company reserves the right to counter by facsimile, any Offer made by the Buyer to accommodate any price fluctuations as per clause 4.1 below. If such counter-offer is not accepted by facsimile within 24 hours of receipt the order will lapse unless accepted by the conduct of the Buyer.
4 Price of the goods
4.1 The price of the Goods shall be the Company's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price current at the date of acceptance of the order. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time the Company's current price existing at the date of acceptance of the order will apply.
4.2 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Company.
4.3 The Company reserves the right to charge:-
4.3.1 a minimum price per order of £5 or such higher price as the Company shall from time to time determine;
4.3.2 a minimum line charge of £1.50, or such higher price as the Company shall from time to time notify to the Buyer per individual unit of goods sold.
5 Terms of payment
5.1 Unless otherwise expressly agreed in writing the Buyer shall pay the price of the Goods within 30 days of the end of the month following the date of the Company's invoice, 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.
5.2 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:-
5.2.1 cancel the contract or suspend any further deliveries to the Buyer;
5.2.2 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 Company) as the Company may think fit (notwithstanding any purported appropriation by the Buyer); and
5.2.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above National Westminster Bank Plc 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 Delivery
6.1 Any dates quoted for delivery of the Goods are approximate only and the Company 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 Company in Writing. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.2 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 or 10 per cent less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Company fails to deliver the Goods for any reason other than under clause 9 the Company's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of obtaining similar goods to replace those not delivered over the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Company 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 Company's fault) then, without prejudice to any other right or remedy available to the Company, the Company may:-
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.5.2 after 48 hours prior notice in Writing to the Buyer sell the Goods at the best price immediately obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7 Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:-
7.1.1 in the case of Goods to be delivered at the Company's premises, at the time when the Company notifies the Buyer that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than at the Company's premises:-
7.1.2.1 at the time of delivery to include Goods delivered to an address in accordance with the Buyer's instructions when neither the Buyer, his employee, his agent nor his subcontractor are present to accept the delivery; or
7.1.2.2 if the Buyer wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods
7.2 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 Company has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Company to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Company's fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Company's property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Company 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 moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4 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 Company shall be entitled at any time to require the Buyer to deliver up the Goods to the Company and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess 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 Company, but if the buyer does so all moneys owing by the Buyer to the Company (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
8 Warranties and liability
8.1 Except where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979), all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.2 Where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer are not affected by these Conditions.
8.3 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 or, without prejudice to clause 6.2 hereof, and discrepancy as to the quantity of the Goods shall (whether or not delivery is refused by the Buyer) be notified to the Company within 7 days from the date of delivery or (where the defect, failure or discrepancy was not apparent on reasonable inspection) within a reasonable time after discovery of the defect, failure or discrepancy. If delivery is not refused, and the Buyer does not notify the Company accordingly the Buyer shall not be entitled to reject the Goods and the Company shall have no liability for such defect, failure or discrepancy, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.4 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in ccordance with these Conditions, the Company shall be entitled to replace the Goods (or the part in question) free of charge or, at the Company's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Company shall have no further liability to the Buyer.
8.5 Where any valid claim in respect of any of the Goods which is based on a discrepancy as to the quantity of the Goods is notified to the Company in accordance with these conditions the Company shall be entitled:-
8.5.1 in the case of an under-delivery to deliver the balance of the Goods ordered within a reasonable period;
8.5.2 in the case of an over-delivery to collect the Goods in excess of the amount ordered.
8.6 Except in respect of death or personal injury caused by the Company's negligence, the Company 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 or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company, 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.
9 Force majeure
9.1 The Company shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any failure to deliver the Goods if the delay or failure was due to any cause beyond the Company's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company's reasonable control:-
9.1.1 Act of God, explosion, flood, tempest, fire or accident;
9.1.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
9.1.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
9.1.4 import or export regulations or embargoes;
9.1.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);
9.1.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
9.1.7 power failure or breakdown in machinery.
9.2 If the circumstances detailed above are still continuing three months after the Buyer receives the Company's notice, then either party may by written notice cancel the contract in which event the Company will refund any payment made on account (subject to deduction of any amount the Company is entitled to claim from the Buyer) but will not be liable to compensate the Buyer for any further loss or damage caused by the failure to deliver.
10 Insolvency of Buyer
10.1 This clause applies if:-
10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver or administrative receiver is appointed,
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company 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.
11 General
11.1 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 at 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.
11.2 No waiver by the Company of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 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 in question shall not be affected thereby.
11.4 The Contract shall be governed by and construed in accordance with English law and all disputes arising in connection with it shall be submitted to the jurisdiction of the English Court.
11.5 The Contract is personal to the parties and shall not be assigned to any other third party without consent in Writing.
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