| 1. |
Interpretation |
| 1.1 |
In these Terms:
"Buyer" means the Buyer of the Goods or the services pursuant to the Contract of which
these Terms form part;
"Contract" means the contract for the sale and purchase of the Goods and/or the supply and
acquisition of the Services;
"Delivery
Address" means the address stated on the Order;
"Goods" means the goods (including any instalment of the goods or any part of them)
described in the Order;
"Order" means the Buyer's purchase order to which these Terms are annexed;
"Price" means the price of the Goods and/or the charge for the Services;
"Seller" means the person so described in the Order;
"Services" means the services (if any) described in the Order;
"Specification" includes any plans, drawings, data or other information relating to the Goods
or Services;
"Terms" means the standard terms of purchase set out in this document and (unless the
context otherwise requires) includes any special terms agreed in Writing
between the Buyer and the Seller;
"Writing",
and any similar expression, includes facsimile transmission and comparable
means of communication, but not electronic mail. |
| 1.2 |
Any reference in these Terms to a statute or a provision of a
statute shall be construed as a reference to that statute or provision as
amended, re-enacted or extended at the relevant time. |
| 1.3 |
Any reference to statutes, regulations, legal enactments or
other legal requirements of any kind includes not only those derived from
national law but any statute, regulation, decision or international convention having
the force of law in respect of the Contract and the Goods, including but
without limitation the decisions and law of the European Union. |
| 1.4 |
The headings in these Terms are for convenience only and shall
not affect their interpretation. |
| |
|
| 2 |
Basis of purchase |
| 2.1 |
The Order constitutes an offer by the Buyer to purchase the
Goods and/or acquire the Services subject to these Terms, save that such offer
may be withdrawn unconditionally and at any time by the Buyer prior to the
Seller formally accepting each offer in Writing upon the terms hereof. |
| 2.2 |
These Terms shall apply to the Contract to the exclusion of
any other terms on which any quotation has been given to the Buyer or subject
to which the Order is accepted or purported to be accepted by the Seller. |
| 2.3 |
If, subsequent to the Contract, any contract for purchase is
concluded with the Seller by any method whatsoever without express reference to
these Terms , it shall be a term of such contract that these Terms apply to
such contract. |
| 2.4 |
Notwithstanding anything contained in the Seller's conditions
of contract relating to any contract between themselves and the Buyer the these Terms shall apply and take precedence
over all other terms and conditions. |
| 2.5 |
The Order will lapse unless unconditionally accepted by the
Seller in Writing within seven days of its date. |
| 2.6 |
No variation to the Order or these Terms shall be binding
unless agreed in Writing between the authorised representatives of the Buyer
and the Seller. |
| 2.7 |
Acceptance of the Order by the Seller will constitute
unconditional acceptance of these Terms without variation. |
| |
|
| 3 |
Specifications |
| 3.1 |
The quantity, quality and description of the Goods and the
Services shall, subject as provided in these Terms, be as specified in the
Order and/or in any applicable Specification supplied by the Buyer to the
Seller or agreed in Writing by the Buyer and no term or condition purporting
to allow the Seller to make changes to the quantity, quality, description and
specification of the Goods as laid down in the Order shall be accepted or agreed
by the Buyer. |
| 3.2 |
Any Specification supplied by the Buyer to the Seller, or
specifically produced by the Seller for the Buyer, in connection with the
Contract, together with the copyright, design rights or any other intellectual
property rights in the Specification, shall be the exclusive property of the
Buyer, and the Seller assigns with full title guarantee to the Buyer all such
copyright, design rights and other intellectual property for no further
consideration, subject only to the payment of the Price. The Seller shall not
disclose to any third party or use any such Specification except to the extent
that it is or becomes public knowledge through no fault of the Seller, or as
required for the purpose of the Contract and the Seller shall not be
entitled to exercise any right of lien over any such intellectual property
rights. |
| 3.3 |
The Seller shall comply with all applicable regulations or
other legal requirements concerning the manufacture, packaging, packing and
delivery of the Goods and the performance of the Services. |
| 3.4 |
The Seller shall not unreasonably refuse any request by the
Buyer to inspect and test the Goods during manufacture, processing or storage
at the premises of the Seller or any third party prior to despatch, and the
Seller shall provide the Buyer with all facilities reasonably required for
inspection and testing. |
| 3.5 |
If as a result of inspection or testing the Buyer is not
satisfied that the Goods will comply in all respects with the Contract, and the
Buyer so informs the Seller whether in writing or not, the Seller shall take
such steps as are necessary to ensure compliance. Failure by the Seller to ensure such compliance will give the
Buyer the right to avoid the Contract and if the Buyer so chooses to avoid the
Contract the Seller agrees that in addition to all and any other rights the
Buyer has against it it will be responsible for the Buyer's reasonable costs
and expenses in arranging the Contract with the Seller, such costs and expenses
to be paid to the Buyer within 14 days of the Buyer informing the Seller of the
same. |
| 3.6 |
The Goods shall be marked in accordance with the Buyer's
instructions and any applicable regulations or requirements of the carrier, and
properly packed and secured so as to reach their destination in an undamaged
condition in the ordinary course. |
| |
|
| 4 |
Price of the goods and services |
| 4.1 |
The Price of the Goods and the Services shall be as stated in
the Order and, unless otherwise so stated, shall be: |
| 4.1.1 |
exclusive of any applicable value added tax (which shall be
payable by the Buyer subject to receipt of a VAT invoice); and |
| 4.1.2 |
inclusive of all charges for packaging, packing, shipping,
carriage, insurance and delivery of the Goods to the Delivery Address and any
duties, imposts or levies other than value added tax. |
| 4.2 |
No increase in the Price may be made (whether on account of
increased material, labour or transport costs, fluctuation in rates of exchange
or otherwise) without the prior consent of the Buyer in Writing, whether or not
the Buyer has been given notice of any possible increase such notice only being
effective if the Buyer specifically accepts the increase by placing such
acceptance in Writing and forwarding the same to the Seller and it shall be
further agreed between the Buyer and Seller that silence on the part of the
Buyer to notice of any increase shall not constitute acceptance of such
increase. |
| 4.3 |
The Buyer shall be entitled to any discount for prompt
payment, bulk purchase or volume of purchase customarily granted by the Seller,
whether or not shown on its own terms of sale. |
| |
|
| 5 |
Terms of payment |
| 5.1 |
The Seller may invoice the Buyer on or at any time after
delivery of the Goods or performance of the Services, as the case may be, and
each invoice shall quote the number of the Order. |
| 5.2 |
Unless otherwise stated in the Order, the Buyer shall pay the
Price of the Goods and the Services within 90 days after the end of the month
of receipt by the Buyer of a proper invoice or, if later, after acceptance of
the Goods or Services in question by the Buyer. |
| 5.3 |
The Buyer may set off against the Price any sums owed to the
Buyer by the Seller and shall be entitled to withhold payment of the Price if
the Seller has not complied with the Order whether in full or part. |
| 5.4 |
In the event of the Buyer not making payment of sums properly
due pursuant to clause 5.2 above: |
| 5.4.1 |
No interest shall be payable by the Seller other than interest
at the statutory interest rate in
accordance with the Late Payment of Commercial Debts (Interest) Act 1998 ("the
Late Payment Act"); and |
| 5.4.2 |
No compensation for
late payment shall be payable other than compensation payable pursuant to the
Late Payment Act section 5A. |
| 5.5 |
In the case of sums paid to the Seller by cheque, banker's
draft or direct inter-bank transfer, payment shall be deemed to have been made
on the despatch by the Buyer of such cheque, draft or transfer and the Seller
agrees that the Buyer shall in no way remain liable to the Seller and shall not
be liable to pay anything other than the Price if through no fault of the Buyer
such cheque, draft or transfer has been delayed in reaching the Seller. |
| |
|
| 6 |
Delivery |
| 6.1 |
The Goods shall be delivered to, and the Services shall be
performed at, the Delivery Address on the date or within the period stated in
the Order, in either case during the Buyer's usual business hours and the
Seller agrees that it shall consider any reasonable request by the Buyer to
postpone delivery to a date different to that set out in the Order. |
| 6.2 |
Where the Goods are not delivered by the Seller but by a
carrier engaged by the Seller to deliver the Goods to the Buyer the Seller
agrees that delivery of the Goods will not have taken place until the Goods are
deposited at the Delivery Address by the Seller's carrier and the Seller
further agrees that it shall be responsible for the carriage of the Goods
whilst in transit whether or not the Goods are being transported by the Seller
or a carrier engaged by the seller and that the Seller will not in any
circumstances be entitled to exclude in any way Section 32(2) of the Sale of
Goods Act 1979. |
| 6.3 |
Where the date of delivery of the Goods or of performance of
the Services is to be specified after the placing of the Order, the Seller
shall give the Buyer reasonable notice of the specified date but the Seller
shall not be entitled to specify a date or time which is outside the Buyer's
normal business hours or which would cause the Buyer inconvenience or the
incurring of costs. |
| 6.4 |
The time of delivery of the Goods and of performance of the
Services is of the essence of the Contract. |
| 6.5 |
A packing note quoting the number of the Order must accompany
each delivery or consignment of the Goods and must be displayed prominently. |
| 6.6 |
If the Goods are to be delivered, or the Services are to be
performed, by instalments, the Contract will be treated as a single contract
and not severable. |
| 6.7 |
The Buyer may reject any Goods delivered which are not in
accordance with the Contract, and the Seller acknowledges that precise
conformity of the Goods with the Contract is of the essence of the Contract and
accordingly the Buyer shall be entitled to reject the Goods if they are not in
conformity with the Contract, however slight the breach may be, |
| 6.8 |
The Buyer shall not be deemed to have accepted any Goods until
either it has confirmed such acceptance to the Buyer or in any case until the Buyer has had a reasonable time to
inspect them following delivery or, if later, within a reasonable time after
any latent defect in the Goods has become apparent. |
| 6.9 |
The Seller shall supply the Buyer in good time with any
instructions or other information required to enable the Buyer to accept delivery
of the Goods and performance of the Services. |
| 6.10 |
The Buyer shall not be obliged to return to the Seller any
packaging or packing materials for the Goods, whether or not any Goods are
accepted by the Buyer. |
| 6.11 |
If the Goods are not delivered or the Services are not
performed on the due date such failure shall be considered to be a breach of
the Contract and then, without limiting any other remedy, the Buyer shall be
entitled to deduct from the Price or (if the Buyer has paid the Price) to claim
from the Seller by way of liquidated damage for delay 10 per cent of the Price
for every week's delay, up to a maximum of 50 per cent. |
| |
|
| 7 |
Risk and Property |
| 7.1 |
Risk of damage to or loss of the Goods shall pass to the Buyer
on delivery to the Buyer in accordance with the Contract. |
| 7.2 |
The property in the Goods shall pass to the Buyer on delivery,
unless payment for the Goods is made prior to delivery, when it shall pass to
the Buyer once payment has been made and the Goods have been appropriated to
the Contract. |
| |
|
| 8 |
Warranties and liability |
| 8.1 |
The Seller warrants to the Buyer that the Goods: |
| 8.1.1 |
will be of satisfactory quality (within the meaning of the
Sale of Goods Act 1979, as amended) and fit for any purpose held out by the
Seller or made known to the Seller in Writing at the time the Order is placed; |
| 8.1.2 |
will be free from defects in design, material and workmanship; |
| 8.1.3 |
will correspond with any relevant Specification or sample; and |
| 8.1.4 |
will comply with all statutory requirements and regulations
relating to the sale of the Goods. |
| 8.2 |
The Seller warrants to the Buyer that the Services will be
performed by appropriately qualified and trained personnel, with due care and
diligence and to such high standard of quality as it is reasonable for the
Buyer to expect in all the circumstances. |
| 8.3 |
Without limiting any other remedy, if any Goods or Services
are not supplied or performed in accordance with the Contract, then the Buyer
shall be entitled: |
| 8.3.1 |
to require the Seller to repair the Goods or to supply
replacement Goods or Services in accordance with the Contract within seven
days; or |
| 8.3.2 |
at the Buyer's sole option, and whether or not the Buyer has
previously required the Seller to repair the Goods or to supply any replacement
Goods or Services, to treat the Contract as discharged by the Seller's breach
and require the repayment of any part of the Price which has been paid. |
| 8.4 |
The Seller shall indemnify the Buyer in full against all
liability, loss, damages, costs and expenses (including legal expenses) awarded
against or incurred or paid by the Buyer as a result of or in connection with: |
| 8.4.1 |
breach of any warranty given by the Seller in relation to the
Goods or the Services: |
| 8.4.2 |
any claim that the Goods infringe, or their importation, use
or resale, infringes, the patent, copyright, design right, trade mark or other
intellectual property rights of any other person, except to the extent that the
claim arises from compliance with any Specification supplied by the Buyer; |
| 8.4.3 |
any liability under the Consumer Protection Act 1987 in
respect of the Goods; |
| 8.4.4 |
any act or omission of the Seller or its employees, agents or
sub-contractors in supplying, delivering and installing the Goods; and |
| 8.4.5 |
any act or omission of any of the Seller's personnel in
connection with the performance of the Services. |
| 8.5 |
Neither the Seller nor the Buyer shall be liable to the other
or be deemed to be in breach of the Contract by reason of any delay in
performing, or any failure to perform, any of its obligations in relation to
the Goods or the Services, if the delay or failure is beyond that party's
reasonable control. Without limiting the foregoing, the following shall be
regarded as causes beyond either party's reasonable control: |
| 8.5.1 |
Act of God, explosion, flood, tempest, fire or accident; |
| 8.5.2 |
war or threat of war, sabotage, insurrection, civil
disturbance or requisition; |
| 8.5.3 |
acts, restrictions, regulations, bye-laws, prohibitions or
measures of any kind on the part of any governmental, parliamentary or local
authority; |
| 8.5.4 |
import or export regulations or embargoes; |
| 8.5.5 |
strikes, lock-outs or other industrial actions or trade
disputes (whether involving employees or either the Seller or the Buyer or of a
third party); |
| 8.5.6 |
difficulties in obtaining raw materials, labour, fuel, parts
or machinery; |
| 8.5.7 |
power failure or breakdown in machinery. |
| |
|
| 9 |
Termination |
| 9.1 |
The Buyer may cancel the Order in respect of all or part only
of the Goods and/or the Services by giving notice to the Seller at any time
prior to delivery or performance, in which event the Buyer's sole liability
shall be to pay to the Seller the Price for the Goods or Services in respect of
which the Buyer has exercised its right of cancellation, less the Seller's net
saving of cost arising from cancellation. |
| 9.2 |
The Buyer may terminate the Contract without liability to the
Seller by giving notice to the Seller at any time if: |
| 9.2.1 |
the Seller makes any voluntary arrangement with its creditors
(within the meaning of the Insolvency Act 1986) or (being an individual or
firm) becomes bankrupt or (being a company) becomes subject to an
administration order or goes into liquidation (otherwise than for the purpose
of amalgamation or reconstruction); or |
| 9.2.2 |
an encumbrancer takes possession, or a receiver is appointed,
of any of the property or assets of the Seller; or |
| 9.2.3 |
the Seller ceases, or threatens to cease, to carry on
business; or |
| 9.2.4 |
the Buyer reasonably apprehends that any of the events
mentioned above is about to occur in relation to the Seller and notifies the
Seller accordingly. |
| |
|
| 10 |
General |
| 10.1 |
The Buyer is a member of the group of companies whose holding
company is Hill & Smith Holding
plc, and accordingly the Buyer may perform any of its obligations or exercise
any of its rights hereunder by itself or through any other member of its group,
provided that any act or omission of any such other member shall be deemed to
be the act or omission of the Buyer. |
| 10.2 |
The Order is personal to the Seller and the Seller shall not
assign or transfer or purport to assign or transfer to any other person any of
its rights or sub-contract any of its obligations under the Contract. |
| 10.3 |
A notice required or permitted to be given by either party to
the other under these Terms 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 under this provision to the
party giving the notice and such notice shall only be validly delivered or
served if sent by way of first class or special delivery post and shall not be
validly served if, without limiting the generality, it is sent by way of
facsimile, e-mail or telex. |
| 10.4 |
No waiver by the Buyer of any breach of the Contract by the
Seller shall be considered as a waiver of any subsequent breach of the same or
any other provision. |
| 10.5 |
If any provision of these Terms is held by any court or other
competent authority to be invalid or unenforceable in whole or in part the
validity of the other provisions of these Terms and the remainder of the
provision in question shall not be affected. |
| 10.6 |
Any dispute arising under or in connection with these Terms or
the sale of the Goods shall be referred to arbitration by a single arbitrator
appointed by agreement or (in default) nominated on the application of either
party by the President for the time being of the Law Society. |
| 10.7 |
The Contract shall be governed by the laws of England, and the
Seller agrees to submit to the non-exclusive jurisdiction of the English
courts. |
| |
|
| |
Back to top |
Nigerian Distributor
