1. DEFINITIONS AND INTERPRETATIONS
1.1 The “Supplier” shall mean Banbury Innovations South
1.2 The “Customer” shall mean any person, partnership, unincorporated business or incorporated company to whom the supplier agrees to sell goods or services.
1.3 “Goods” shall mean the Goods (including any installment of the goods or any part of them) which the Supplier is to supply in accordance with these conditions.
1.4 A “Contract” is any agreement between the Supplier and the Customer to which the items apply.
1.5 “Services” shall mean any services, including the provision of labour which the Supplier is to supply in accordance with these conditions.
1.6 Any reference in these conditions to any provision of a statute shall be constructed as a reference to that provision as amended, re enacted or extended at the relevant time,
1.7 The singular shall include the plural and the male shall include the female and vice versa.
1.8 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. FORMATION OF CONTRACT
2.1 All orders and contracts shall be in writing. The Supplier is not willing to contract otherwise than on these conditions which shall be deemed to be incorporated into any order accepted by the Supplier to the exclusion of any terms of the Customer insofar as the same are inconsistent herewith. No modifications of these conditions shall be effective unless the same is in writing and signed by an authorised signatory of the Supplier.
2.2 If a Contract has not been concluded between the Supplier and the Customer within a period of forty-five (45) days from the date of the quotation the Supplier reserves the right to re quote for such Goods or Services and the Supplier may at its discretion refuse to accept any order which constitutes part only of the Goods or Services forming the subject of a quotation.
2.3 Any quotation shall be regarded as an invitation to treat and no order arising out of the quotation shall be accepted save by the acknowledgement in writing signed by an authorised signatory on behalf of the Supplier.
2.4 Any modification and or variation to an order must be confirmed in writing by the Customer and shall not be accepted save by the acknowledgement in writing signed by an authorised signatory on behalf of the Supplier.
2.5 Where the goods are to be delivered in installments each delivery shall constitute as a separate contract and failure by the Supplier to deliver any one or more installments shall not entitle the Customer to treat any other related contracts as repudiated.
2.6 Unless made by the Supplier in writing the Supplier’s employees or agents are not authorised to make any representations. In placing an order the Customer acknowledges that it does not rely on and waives any claim for breach of any representation other than those made in writing by the Supplier.
2.7 Any advice or recommendation given by the Supplier, or its employees or agents, to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Supplier, is followed or acted upon entirely at the Customer’s own risk and accordingly the Supplier shall not be liable for any such advice or recommendation which is not so confirmed.
2.8 The Supplier is continually improving the specification and design of its product range and whilst care is taken to ensure that literature produced by the Supplier on the date of its production, such literature should not be regarded as an absolute guide to specification and the Supplier reserves the right to modify any of its products without notice and without liability on the part of the Supplier.
2.9 The Supplier reserves the right to make any changes in the specification of the goods which are required to conform to any applicable safety or other statutory requirement or which do not materially affect their quality or performance.
2.10 Any typographical, clerical or other error in any sales literature or quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
3.1 Unless otherwise stated in the quotation or acceptance by the Supplier, all prices quoted:-
3.1.1 are in pounds sterling; and
3.1.2 are exclusive of any applicable Value Added Tax.
3.2 Where the Supplier agrees to deliver the Goods the Customer shall be liable to pay the Supplier’s charges for transport, packing, handling and insurance.
3.3 Prices only cover delivery on normal working days during working hours. Any delivery made at the Customers request on public holidays, weekends an outside working hours will be the subject of an additional charge.
3.3 The rates and prices given in the quotation are not subject to any discount, whether trade or cash, except such as may be expressly specified in the quotation.
4.1 Delivery shall be to the destination specified by the Customer in the order unless agreed in writing between the parties. The Supplier shall not be bound to deliver to any other destination, but in the event of any agreement to deliver to any alternative destination, the Customer will be charged for any increased costs thereby incurred in addition to the contract price.
4.2 Nothing herein shall preclude the Supplier from arranging for the delivery of the Goods to the Customer in advance of the indicated delivery date.
4.3 Delivery dates (where given) are quoted in good faith by the Supplier and are based upon the date of receipt of the order. Time of delivery shall not be of the essence and save as provided in this agreement the Supplier shall not be liable for any loss (consequential or otherwise) arising from late delivery.
4.4 Delivery shall have been deemed to have taken place when the Goods are in the specified location ready for unloading by the Customer. It shall be the responsibility of the Customer to ensure access and adequate safety for the Supplier’s vehicles. For the avoidance of doubt the responsibility for providing for suitable resources for unloading the Supplier’s vehicles rests with the Customer.
4.5 If a vehicle used for performing the Supplier’s contract with the Customer delivers a load to a place situated off a public road the Customer is to be solely responsible for any accident or damage resulting in consequence.
4.5 The Supplier allows one hour for off loading vehicles. If a vehicle is detained in excess of this time the Supplier reserves the right to make additional charge.
4.7 Goods shall be examined immediately upon arrival and any apparent damage or shortages shall be reported in writing or by facsimile to the Supplier and to the carriers so that such notification is received not later than 48 hours after delivery. The Customer shall indemnify the Supplier against any loss suffered because of its inability to claim against the carriers as a result of a breach of this provision by the Customer.
4.8 The Customer shall have a period of fourteen (14) days following delivery in which to examine the goods and to notify the Supplier in writing of any intention to reject them on the grounds upon which they are alleged to be defective. If this period expires without the Supplier receiving any intimation of rejection the Customer will be deemed to have accepted the Goods according to section 35 (1) of the sale of Goods Act 1979 and will therefore be bound to pay for them.
5. SALE BY SAMPLE
In accordance with clause 4.8 above, the Customer shall have a period of fourteen (14) days following delivery in which to notify the Supplier in writing of any alleged discrepancy between the sample supplied and the bulk of the order. The absence of any such notification will constitute acceptance of the bulk.
6. TERMS OF PAYMENT
6.1 Unless otherwise stated, payment for the Goods and Services shall be strictly made on or before the 28th day of the month following the month of Delivery. For account approved Customers invoices shall be raised upon delivery of the Goods or the supply of the Services. Non account Customers will be required to pay by pro-forma invoice.
6.2 The Supplier reserves the right to grant, refuse, restrict or cancel credit terms at its sole discretion,
6.2.1 If the Customer fails to make any payment on the due date then, without limiting any other right or remedy available to the Supplier, the Supplier may:
6.2.2 cancel the contract or suspend any further deliveries to the Customer (whether under the terms of this Contract or under any other agreement for the supply of goods or services between the parties);
6.2.3 appropriate any payment made by the Customer to such of the Goods or Services (or the goods or services supplied under any other contract between the Customer and the Supplier) as the Supplier may think fit (notwithstanding any purported appropriation by the Customer); and
6.2.4 without prejudice to the Supplier’s rights under the Late Payment of Commercial Debts (Interest) Act 1988 (as amended) charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 8 per cent per annum above HSBC 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)
6.3 In the event of non payment of any account, as and when it falls due, the entire balance outstanding upon the Customer’s various accounts with the company (including accounts due for goods supplied but not yet invoiced) will become immediately due and payable.
6.4 No disputes arising under the contract nor delays shall interfere with prompt payment by the Customer. The Customer may not set up against the Supplier any breach of warranty or condition (expressed or implied) in diminution or extinction of the price and Section 53 (1)(a) of the Sale of Goods Act 1979 is hereby excluded.
7.1 Subject to the conditions set out below the Supplier warrants that the Goods will correspond with their specification at the time of delivery or supply and are of satisfactory quality. The Supplier does not give any warranty as to fitness for any purpose whether or not such purpose shall have been made known to the Supplier other than such warranties given and described in any manufacturer’s warranty document supplied with each contract.
7.2 The above Warranty is given by the Supplier subject to the following conditions:
7.2.1 That the Supplier shall be under no liability in respect of any defect arising from fair wear and tear willful damage negligence abnormal use or application failure to follow the Supplier’s instructions (whether oral or in writing) misuse or alteration of Goods.
7.2.2 The Supplier shall he 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 for payment.
7.3 Whilst every effort will be made to avoid variations of shades and sizes in goods delivered the Supplier neither guarantees not warrants that such variations will not occur, or that goods will confirm to sample, either in quality or colour.
7.4 No claim will be entertained by the Supplier if made where the materials have been incorporated, whether by or on behalf of the Customer, or by anyone else into other goods.
7.5 Any claim by the Customer which is based on any defect in the condition of the Goods, or in the quality of the Goods, or of their failure to correspond with specifications, shall (whether or not delivery is refused by the Customer) be notified to the Supplier in writing specifying the defect or failure alleged within fourteen (14) days from the date of delivery, failing which the Customer shall not be entitled to reject the goods and the Supplier shall have no liability for such defect or failure and the Customer shall be bound to pay the price as if the goods had been delivered or supplied in accordance with the Contract.
7.6 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 Supplier in accordance with these conditions, the Supplier shall be entitled to replace the Goods (or the part of the bulk consignment in question) or perform any work of rectification free of charge, or at the Supplier’s sole discretion, refund to the Customer the price of the Goods. The Supplier shall have no further liability to the Customer.
7.7 Except in respect of death or personal injury caused by the Supplier’s negligence the Supplier shall not be liable to the Customer by reason of any representation or any implied warranty condition or other term or any duty of common law or under the express term of the Contract for any consequence or loss or damage (whether for loss of profit or otherwise) costs expenses or other claims for consequential compensation whatsoever, (whether caused by the negligence of the Supplier its employees or agents or otherwise) which arise out of or in connection with the provision of the Goods or Services or in the use or resale of the Goods by the Customer except as expressly provided in these conditions.
8. LIMITATION OF LIABILITY
8.1 The limit of the Supplier’s liability hereunder for any breach of these conditions whether as damages or otherwise shall be the Contract price of Goods.
8.2 The Supplier shall not be responsible for the design or specification of the Goods ordered by the Customer unless expressly agreed by the Supplier.
9. RETENTION OF TITLE
9.1 Legal and beneficial title to the Goods shall not pass to the Customer until the Customer has paid for the Goods and all other sums due to the Supplier (and any incidental costs and expenses of sale) in full.
9.2 Until title to the Goods has passed, the Customer as bailees for the Supplier shall keep them separate and distinct from any other Goods in the Customer’s possession and identifiable as being the property of the Supplier.
9.3 The Customer shall permit the Supplier at any time during normal working hours upon request forthwith to enter any premises of the Customer to ensure that the Customer is complying with clause [9.2] and will forthwith at its own expense implement any reasonable instructions of the Supplier necessary to secure compliance.
9.4 The power of a Customer to use or sell the goods shall cease
9.4.1 Forthwith upon notice (whether written or oral) by the Supplier given at any time after the Customer shall have been in default for more than seven days in payment of any sum whatsoever due by the Customer to the Supplier.
9.4.2 If the Customer is a company, automatically upon the happening of any of the following events:
126.96.36.199 The appointment of a Receiver or Manager (including an Administrative Receiver).
188.8.131.52 The convening of a meeting for the purpose of a voluntary winding up (other that for reconstruction or amalgamation).
184.108.40.206 The presentation of a petition to wind up the Customer or for an administration order under the insolvency Act 1986.
220.127.116.11 The summoning of a meeting under section 3 of the insolvency Act 1986 or otherwise for the purpose of proposing any arrangements or composition with creditors.
9.4.3 If the Customer is an individual or a firm automatically upon the happening of the following events:
18.104.22.168 If the Customer commits an act of bankruptcy or if a bankruptcy petition is presented under the Insolvency Act 1986.
22.214.171.124 If the Customer applies for an Order under section 253 of the Insolvency Act 1986 or calls a meeting for the purpose of making any arrangement or composition with creditors.
9.5 After the power to use or sell has ceased the Customer will deliver up the Goods to the Supplier and hereby authorises the Supplier to enter any premises of the Customer for the purpose of finding and/or taking delivery of the same.
10. PASSING OF RISK
Not withstanding that a title to the goods may not have passed to the Customer the goods are at the Customer’s entire risk from the date that the same are delivered to the Customer in accordance with these terms.
11. SUSPENSION OF DELIVERY
11.1 This Clause 11 is without prejudice to any rights that the Supplier may have for damages for breach of contract or otherwise against the Customer.
11.2 In the event that the Customer:-
11.2.1 becoming insolvent or bankruptcy; or
11.2.2 having made an arrangement with its creditors; or
11.2.3 cease to trade; or
11.2.4 stop payment of its debts; or
11.2.5 suffered a receiver to have been appointed over any of its assets or under taking; or
11.2.6 have suffered an execution or distress to be levied against any of its assets; or
11.2.7 failed any judgment debt within 7 days of the same becoming payable the Supplier shall be entitled to suspend all further deliveries under any contract between the Customer and Supplier.
It is hereby confirmed that the rights of the Supplier shall not be diminished or waived by any indulgence or forbearance extended to the Customer and no waiver by the Supplier of any specific breach on the part of the Customer shall operate as a waiver of any other breach.
13.1 If as a result of any order the Supplier has to make a special mould for the manufacture of the Goods, then the cost of the mould is to be paid by the buyer immediately upon the Supplier’s acceptance of the order. Any failure to pay may result in delay in the manufacture or cancellation of the order. Any such delay or cancellation shall be without prejudice to any of the Customers accrued rights.
13.2 Any moulds created or used by the Supplier to make the Goods remain the property of the Supplier.
14. INTELLECTUAL PROPERTY
All intellectual property rights in the Goods or moulds shall vest in the Supplier absolutely and the Customer shall at the Supplier’s expense execute any documents or do any acts necessary to give effect to the vesting of such rights in the Supplier.
15.1 All Goods ordered that are purpose made for a specific order, and which are accepted by the Supplier for supply to the Customer for that specific order must be paid for, and cannot be cancelled for any reason whatsoever.
15.2 If the Customer fails to accept delivery of purpose made Goods within 14 days of notification that they are ready for dispatch, the Supplier reserves the right to invoice the Goods to the Customer and charge them therefore; additionally the customer shall then pay reasonable storage charges until the Goods are either dispatched to the customer or disposed of elsewhere
15.2 All Goods which are not imported or manufactured for a specific order, i.e. those which are taken from Stock may be cancelled free of charge up to 48 hours prior to delivery. Cancellations or returns made after this deadline will be accepted subject to the Customer paying a sum of 20% (plus VAT) of the quoted price plus any return haulage or carriage charges. The parties agree that this figure is a genuine pre-estimate of the Seller’s losses arising from such cancellation and does not constitute a penalty.
16. FORCE MAJEURE
In the event that the Supplier shall he delayed in, or prevented from, carrying out any of its obligations under this agreement for the sale of Goods as a result of any cause beyond its control including (but not by way of limitation of) war, invasion, hostilities and civil war strife or commotion, strikes, lockouts, breakdown of plant, failure of third party to deliver Goods or materials, storm, floods, fire or any other cause, the Supplier shall be at liberty at its election to suspend its obligations under this agreement in which case it shall be relieved of all obligations and liabilities incurred under this agreement insofar as and for so long as the fulfillment of such obligations and liabilities is thereby presented, frustrated or impeded, or to cancel the Contract without incurring any further liability whatsoever.
The benefit of the contract shall not be capable of assignment by the Customer without the written consent of the Supplier
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 address or such as may at the relevant time have been notified pursuant to this provision to the party giving notice.
19. CONSTRUCTION AND CHOICE OF LAW
19.1 These conditions shall he construed in accordance with the Laws of England and Wales whose Courts shall have sole jurisdiction over all matters arising hereunder.
19.2 Each provision contained in each clause and sub clause in this agreement shall be constructed as independent of every other provision to the effect that if in any of the provisions shall be determined to be invalid and unenforceable then such determination shall not effect any other provision within this agreement.