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Terms and Conditions

GENERAL CONDITIONS OF SALE OF BENROSS MARKETING LTD

1. INTERPRETATION

1.1  In these conditions:
‘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.
‘GOODS’ means the goods (including any instalment of the goods or any part of them) which the seller in accordance with these conditions.
‘SELLER’ means Benross Marketing Limited (company registration No. 3037336)
‘CONDITIONS’ means the standard terms and conditions 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 seller.
‘CONTRACT’ means the contract for the purchase and sale of the goods.
‘WRITING’ includes telex, cable, facsimile transmission and other 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 reenacted at the relevant time.
1.3  The headings in these conditions are for convenience only and shall not be affected there interpretation.

 

2. BASIS OF THE SALE

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 order of the buyer which is accepted by the seller and confirmed in writing, 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 quotation is accepted or purported by the buyer.
2.2 No variations to these conditions shall be binding unless agreed in writing between the authorise representatives of the buyer and seller.
2.3 The sellers employees or agents are not authorised 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 any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the seller or its employees or agents to the buyer or its employees or agents as to the storage, application or use of the goods which is not confirmed in writing by the seller is followed or acted upon entirely at the buyer’s own risk, and accordingly the seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or any other error or omission in any sales literature, quotation, price list acceptance of offer, invoice or other document or information issued by the seller shall be subject to correction without any liability on the part of the seller.

 

3. ORDERS AND SPECIFICATIONS

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 sellers authorised representative.
3.2 The buyer shall be responsible to the seller for ensuring the accuracy of the terms of any order (including 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 sellers quotation (if accepted by the seller) or the buyer’s order (if accepted by the seller).
3.4 If 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, trademark or other industrial intellectual
property of rights of any person which results from the sellers use of the buyers specification.
3.5 The seller 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 of where the goods as to be supplied to the seller’s specification which do not materially affect he quality or performance.
3.6 No order which has been accepted by the seller may be cancelled by the buyer except with the agreement in writing of the seller and on terms that the buyer shall indemnify the seller in full against all loss (including loss of profit), cost (including cost of all labour and material used) damages, charges and expenses incurred by the seller as a result of cancellation.

 

4. PRICE OF THE GOODS

4.1 The price of the goods shall be the sellers quoted price or where no price has been quoted (or a quoted price is no longer valid) the price listed in the seller price list current at the date of acceptance of the order. Where the goods are supplied for export from the United Kingdom, the sellers export price list shall apply.
4.2 The seller reserves the right, by giving notice to the buyer at any time before delivery, to increase the price of 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 limination any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost of labour materials or other costs of manufacture) any change in
delivery dates, quantities or specifications for the goods which is requested by the buyer, or any delay caused by any instructions of the buyer to give the seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any other quotation or in any price list of the seller, and unless otherwise agreed in writing between the buyer and seller, all prices are;
(a) In the case of UK mainland, Northern Ireland and Eire sales inclusive of delivery.
(b) In the case of all other countries ex works.
4.4 The price is exclusive of any applicable Value Added Tax, which the buyer will additionally be liable to pay to the seller.

 

5. TERMS OF PAYMENT

5.1 Subject to 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 the delivery of the goods unless the goods are to be collected by 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 within thirty days of the date delivery is effected or within thirty days of the date that the seller has notified the buyer that the goods are ready for collection (as appropriate and as the case may be) notwithstanding that property of 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 prejudice or any other right or remedy available to the seller, the seller shall be entitled to;

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 approbation by the buyer); and
5.3.3 charge the buyer interest (both before and after judgement ) on the amount unpaid at the rate
of five per cent per annum above Natwest Plc (or such other bank as shall succeed it or acquire its business) base leading 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 Delivery of the goods shall unless agreed in writing be made;

(a) In the case of the UK mainland, Northern Ireland and Eire by the seller delivering
goods to the agreed place.
(b) In all other cases by the buyer collecting the goods at the sellers 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 delivering the goods to that place.

6.2 The sellers duty to deliver shall be discharged by the signature upon the sellers delivery note of an official of the buyer or a person purporting to be an official of the buyer.
6.3 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 essence unless previously agreed by the seller in writing. The goods may be delivered by the seller in advance of the quoted delivery date upon giving reasonable notice to the buyer.
6.4 Where goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the seller to deliver any one or more 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.
6.5 The seller shall not be bound to deliver the goods or any instalment thereof if the buyer has exceeded its credit limit with the seller or has failed to make any payment due to the seller (wether under contract or otherwise) on due date. If otherwise the seller fails to deliver the goods for any other than any caused beyond the seller’s reasonable control or the buyers fault, and the seller is found to be 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.

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 cost (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) 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 seller’s premises, at the time when the seller 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 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 tended delivery of the goods.
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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 seller 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 seller to the buyer for which payment is then due. Unless otherwise specifically agreed in writing, cash or cleared funds received by the
seller from buyer shall be applied respectively against the seller’s outstanding invoices to the buyer with the earliest thereof.
7.3 Until such time as the property in the goods passes to the buyer, the buyer shall hold the goods as the seller’s fiduciary against and bailee, and shall keep the goods separate from those of the buyer and third parties and property stored, protected and insured and identified as the seller’s property. Until that time the buyer shall be entitled to resell or use the goods in the ordinary course of it’s business, but shall account to the seller for the proceeds of sale or otherwise of the goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds from any monies or property of the buyer and third parties and in the case of tangible proceeds, property stored, protected and insured.
7.4 Until such time as the property in the goods passes to the buyer (provided the goods are still in existence and have not been re sold), 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 to enter upon any premises of the buyer or any third party where the goods and repossess the goods.
7.5 The buyer shall not be entitled to pledge or in anyway charge by way of security for any indebtedness 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 of any other right or remedy of the seller) forthwith become due and payable.

 

8. WARRANTIES AND LIABILITY

 

8.1 If the seller gives any specific warranty in writing in relation to the goods then the seller’s liability to the buyer shall be limited to the extent of that warranty.

8.2 Any warranty so given is given by the seller is 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 specification supplied by the buyer;
8.2.2 the seller shall be under no liability in respect arising from the fair wear and tear, wiliful damage, negligence, abnormal working conditions, failure to follow the seller’s instructions (whether or not 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 of payment;
8.2.4 any 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 is given by the manufacturer to the seller.

8.3 Subject as expressly provided in these conditions and except where the goods are sold to a person dealing as a UK customer (within the meaning of the unfair contract terms act 1977), all warranties, conditions or other terms implied by the statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the goods are sold under a UK customer transaction (as defined by the sale of goods act 1979) the statutory rights of the buyer are not affected by these conditions.
8.5 The seller shall not be liable to the buyer by reason of any representation, or 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 seller, it’s employees or agents
or otherwise) which arise out of or in connection with the supply of the goods or their use or re sale by the buyer, except as expressly provided in these conditions.
8.6 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. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the seller’s reasonable control;

 

9. INSOLVENCY OF BUYER

9.1 This clause applies if;

 

9.1.1 the buyer makes any voluntary agreement with it’s creditors or it becomes subject to an administration order or (being of an individual or firm) becomes bankrupt or being a company goes into liquidation (otherwise for the purpose of amalgamation or reconstruction) or;
9.1.2 an encumbrance takes possession or a receiver is appointed or any of the property or the 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.

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 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 to the contrary.

 

10. EXPORT TERMS

10.1 In these conditions dincotermsf means the international rules for interpretation of trade terms of the international Chamber of Commerce as in force at the date when the contract is made. Unless the context otherwise requires, any term or expression which is defined or given a particular meaning by the provisions of incoterms shall have the same meaning in these conditions, but if there is any conflict between the provisions of incoterms and these conditions, the later shall prevail.
10.2 Where the goods are supplied for export from the United Kingdom, the provisions of this clause shall (subject to any special terms agreed in writing between the buyer and the seller) apply notwithstanding any other provisions of these conditions.
10.3 The buyer shall be responsible for complying with any legislation or regulations governing the importation of goods into the country of destination and for the payment of any duties thereon.
10.4 Unless otherwise agreed in writing between the buyer and the seller, the goods shall be delivered ex works and the seller shall be under no obligation to give notice under section 32(3) of the sale of goods act 1979.
10.5 The buyer shall be responsible for arranging for testing and inspection of the goods at the sellers premises before shipment. The seller shall no liability for any claim in respect of any defect in the goods which would be apparent on inspection and which is made after shipment or in respect of any damage during transit.
10.6 Payment of all amounts due to the seller shall be made by irrevocable and confirmed letter of credit opened by the buyer in favour of the seller acceptable to the seller or, if the seller has agreed in writing on or before acceptance of the buyer’s order to waive this requirement, by acceptance by the buyer and delivery by the seller of a bill of exchange drawn on the buyer payable thirty days after sight to the order of the seller at such branch of National Westminister Bank Plc (or as such other bank as the seller may from time to time nominate) in England as may be specified in the bill of exchange.
10.7 The buyer undertakes not to offer the goods for resale in any country notified by the seller to the buyer at or before the time the buyers order is placed or to sell the goods to any person if the buyer knows or has reason to believe that person intends to re sell goods in any such country.

 

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 party at it’s registered office or principle place of business or such other addresses 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 seller 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 Any dispute concerning contract or arising under or in connection with these conditions, or the sale    of the goods shall be dealt with before the competent court at Liverpool, England.
11.5 The contract shall be governed by the laws of England.

 

  

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