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Conditions of Sale
CONDITIONS OF SALE
1. DEFINITIONS
In these conditions the following expressions shall have the following meanings-
(a) ‘the Company’ shall mean Kingfisher Building Products Limited and where the context so admits and sub-agents
(b) ‘the buyer’ shall mean any person firm company or unincorporated association with whom any contract to supply goods shall be made by the Company.
(c) ‘the goods’ shall mean products of the Company contracted to be sold by the Company to any Buyer.
2. ACCEPTANCE OF ORDERS
“All orders shall be deemed to incorporate these conditions of sale as shall any contract or agreement arising therefrom to the exclusion of any terms inconsistent therewith in any such order contract or agreement unless otherwise agreed by the Company in writing. The Company reserves the right as its option upon giving prompt notice in writing of its intention to the Buyer not to fulfill any such order. If any one or more of these conditions shall be held to be invalid or unenforceable then the remaining conditions shall nonetheless shall continue to have full force and effect.”
3. PRICES
All price lists and quotations are, unless specifically stated subject to alteration at any time without notice. Orders are accepted on condition that goods are invoiced at prices ruling at date of dispatch unless otherwise agreed by the company in writing. Any price set out in any quotation whether oral or in writing shall be for the information of the Buyer only and shall not be construed as a representation by or on behalf of the company. All prices are subject to Value Added Tax at the prevailing rate at the date of dispatch.
4. TERMS OF PAYMENT
(a) Unless otherwise confirmed by the Company in writing payment of the price together with Value Added Tax thereon shall be made by the Buyer in cash without discount on receipt of the Company’s sales invoice and payment in full shall be made notwithstanding any delay in the delivery of the Goods.
(b) If the Goods are delivered in instalments the Company shall be entitled to invoice each installment as and when dispatch thereof has been made and payment shall be due in respect of each installment whereof dispatch has been made notwithstanding any none delivery of other installments or other default on the part of the Company.
(c) If upon the terms applicable to any order the price shall be payable by installments or if the Buyer has agreed to take specified quantities of Goods at specified times a default by the Buyer of the payment of any due installment or the failure to give delivery instructions in respect of any quantity of Goods outstanding shall cause the whole balance of the price to become due forthwith.
(d) The price of the Goods shall be due in full to the Company in accordance with the terms of the order and the Buyer shall not be entitled to exercise any set off lien or any other similar right or claim.
(e) Without prejudice to any other rights it may have the Company is entitled to charge interest at 15% per annum on all overdue payments of the price of the Goods or the price of any installments thereof.
5. Delivery
(a) The Company’s estimates of times for delivery must be regarded as approximate only, and whilst every effort will be made to avoid delay, the Company will accept no liability for any direct or indirect loss arising from any such delays.
(b) Where the Goods are handed to a carrier for carriage to the Buyer or the a United Kingdom port for export any such carrier shall be deemed to be the agent of the Company and not of the Buyer for all purposes.
(c) Where the Goods are sold F.O.B. the responsibility of the Company shall cease immediately the Goods are placed on board ship and the Company shall be under no obligation to give the Buyer the notice specified in section 32 (3) of the Sale of Goods Act 1893.
(d) No liability for non-delivery partial loss or damage to the Goods occurring prior to delivery or where the Goods are not in accordance with the contract will attach to the Company unless claims to that effect are notified in writing by the Buyer to the company (with a copy to the carrier if the Company’s own vehicle have not been used to deliver the goods):
(i) within seven days of delivery for the partial loss damage or non-compliance with the contract or:
(ii) within fourteen day of the date of the invoice for non-delivery.
(e) In the event of a valid claim for non-delivery, partial loss, damage or non-compliance with the contract the Company undertakes at it’s option either to reprocess or replace the goods at it’s expense but the Company shall not be under any further or other liability to any party in connection with such non-delivery, partial loss, damage or non compliance.
(f) If the buyer shall fail to give notice in accordance with Condition 5(c) above the goods shall be deemed to be in all respects in accordance with the contract and the Buyer shall be bound to accept and pay for the same accordingly.
(g) Without prejudice to any other rights it may have the Company may withhold delivery of the Goods or any instalment thereof if it has reasonable grounds for doubting the Buyer’s ability to pay the price thereof.
6. PACKING
(a) The company undertakes to take care to ensure that goods are adequately packed where necessary to prevent damage but the Company shall be under no liability for any packing which is deemed to be ineffective.
(b) An extra charge for any special packing required for export orders or in accordance with customers specific requirements will be made.
7. PASSING OF RISK
From the time of dispatch the goods shall be at the risk of the Buyer who shall be solely responsible for their custody and safekeeping and shall indemnify the Company for any loss or damage thereby sustained.
8. PASSING OF TITLE
(a) Notwithstanding any agreed terms of payment goods are not sold and delivered on credit but on the condition that the ownership of them shall not pass to the Buyer until they are fully paid for and the Company shall be at liberty in its discretion to cancel the contract and remove the goods if the price be not paid at the times and in the manner stipulated and to recover damages from the Buyer in respect of the loss and damage suffered as a result of the Buyer’s failure to complete the contract and any instalments of purchase many which may have been paid shall be retained by the Company against those damages. Until the moment of full payment of the amount which the Buyer owes the Company in respect of the said goods delivered sold or contracted to be sold the Buyer shall keep the goods for the Company in his capacity as fiduciary owner and if required shall store the goods in such a way that they can be recognized as such. The entries in the books of accounts maintained by the Company shall be conclusive evidence of such indebtedness.
(b) In the event of any resale by the Buyer of the Goods the Company shall be beneficially entitled to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefore shall be held on trust for the Company.
(c) In the event of failure to pay the price in accordance with the contractual obligations the Company shall have power to re-sell the Goods or products after reasonable notice, such power being additional to (and not in substitute for) any other power of sale arising by operation of law or implication or otherwise.
9. PATENT RIGHTS
(a) Patent and design rights relating to goods offered or supplied shall remain the absolute property of the Company. The Buyer will not, without the previous written consent of the Company copy or enable others to copy any goods or parts thereof supplied by the Company.
(b) The Buyer hereby agrees to indemnify the Company against all claims damages costs and expenses to which the Company may become liable through executing any orders to the specification of the Buyer by the infringement or the alleged infringement of a Patent Registered Design or similar instrument of privilege.
(c) No license is granted under third party patent claims covering the combination of the Company’s products with other devices or covering the use of the products of the Company except for a purpose made known to the Company and accepted by it as part of the sale.
10. CONDITIONS AND WARRANTIES
(a) Every description drawing or illustration of the Goods is given in good faith based on average results of standard tests buy any conditions or warranties expressed or implied that the Goods shall correspond with such description specification drawing or illustration is hereby expressly negatived and the use of any such description specification drawing or illustration shall not constitute a sale by description.
(b) Any conditions or warranties (whether express implied by a statute common law or arising from conduct or a previous course of dealing or trade custom or usage) as to the quality or fitness of the Goods for any particular purpose even if that purpose is made known expressly or by implication to the Company are hereby expressly negatived.
(c) Notwithstanding that a sample of the Goods may have been exhibited to and inspected by the Buyer or results of standard tests upon a sample furnished to the Buyer it is hereby declared that such sample was so exhibited and inspected or tested solely to enable the Buyer to judge for himself the quality of the bulk and not so as to constitute a sale by sample. The Buyer shall take the Goods at its own risk as to their corresponding with the sample or as to their quality condition or sufficiency for any purpose.
11. CONSEQUENTIAL LOSS
(a) The Company shall not be liable for any costs claims or damages or expenses arising out of any tortious act or omission or any breach of contract or statutory duly calculated by reference to profits income production or accruals or loss of such profits income production or accruals by reference to accrual of such costs claims damages or expenses on a time basis.
12. REPRESENTATIONS
(a) No statement description information warranty condition or recommendation contained in any catalogue price list advertisement or communication (other than written and signed guarantees given by the Company) or made verbally by any of the agents or employees of the Company shall be construed to enlarge vary or override in any way any of these conditions.
13. DEFECTIVE GOODS
(a) In the case of Goods of the Company’s manufacture the Company undertakes for the period of two months following delivery of the Goods at its discretion to credit to the Buyer in full the price paid by the Buyer to the Company or supply free of charge a replacement of the Goods in which a substantial defect in materials or workmanship appears within four weeks of delivery at the place of delivery specified by the Buyer for original Goods provided that in any case the Goods have been accepted and paid for.
(b) In case of the Goods not of the company’s manufacture the Company will pass on to the Buyer any benefits obtainable under any warranty given by the Company’s supplier provided that the Goods have been accepted and paid for.
(c) The rights given to the Buyer in sub-clause (a) and (b) above shall be in substitution for all and any other rights which the Buyer would or might have had but for these conditions.
(d) In order to exercise its rights under sub-clause (a) above the Buyer shall inform the Company within 28 days of the date when such defect appeared or ought reasonably to have been discoverable and shall return the defective Goods carriage paid to the Company.
(e) Nothing herein shall impose any liability upon the Company in respect of any defect in the Goods arising out of the acts omissions negligence or default of the Buyer its servants or agents including in particular but without prejudice to the generality of the foregoing and failure by the Buyer to comply with any recommendation of the Company as to storage and handling of the Goods.
(f) Where the Goods are for delivery by installments the foregoing shall not be a ground for cancellation of the remainder of the installments and the Buyer shall be bound to accept delivery thereof.
14. LIMITAION OF LIABILITYThe liability of the Company to the Buyer for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the sum of £
15. DEFAULT OR INSOLVENCY
The Company has the right to cancel deliveries in any case of the Buyer’s default in payment breach of agreement, bankruptcy or in the case of a limited company, the appointment of a receiver or commencement of liquidation other than for amalgamation or reconstruction purposes but save as aforesaid orders may not be cancelled except by agreement in writing signed by both parties.
16. FORCE MAJEURE
Without prejudice to the generality of any precious exclusion or limitation of liability the Company shall not be liable for any failure to fulfil any term of any transaction governed by these conditions if fulfilment has been delayed, hindered or prevented by any circumstances whatsoever which are not directly within the Company’s control and if the Company is able to fulfill some but not all of the demand for the goods the Company may allocate its available supplies amongst its customers, including parent, subsidiary or associated companies, in such manner as the Company in its absolute discretion considers to be fair.
17. THE LAW GOVERNING THE CONTRACT
The contract shall in all respects be construed and operated as an English contract governed by English Law and the Buyer shall submit to the jurisdiction of the Courts of England.
