Application of Conditions
Acceptance of Seller of Buyers order is conditional upon acceptance to Buyer of the following conditions which override all other terms and conditions inconsistent therewith, express, implied, statutory or otherwise whenever contained except insofar as any conditions or warranties implied by stature shall not be capable of being excluded.
Delivery of Instalments
Where Buyer requests or Seller elects for delivery of any order by way of instalments. Any defect deficiency or failing whether to the quality, quantity or time of delivery in respect of one or more instalments shall not vitiate the contact.
Price and Payment
a) The price for each delivery of goods hereunder will be Sellers price ruling for the goods at the date of despatch or, in the event of Sellers requiring payment before delivery hereunder, at the date at which payment is made.
b) All prices (which are exclusive of VAT, unless specifically stated) are net and are not subject to any discount and, unless an earlier date is specified by the Seller, payments due and shall be made in cash at the Sellers office 30 days after the date of issue of the invoice or delivery of the goods, which ever is the earlier.
c) Interest at the rate of 4% above Barclays Bank base rate from time to time in force shall be chargeable as well after as before judgement on any sums not paid by the due date.
d) Without prejudice to any other right or remedy, Cropwell Ltd or Harby Agriculture Ltd reserves the right to set off any amount owing at any time from the seller Cropwell Ltd or Harby Agriculture Ltd or any other parent, subsidiary or associated company of Cropwell Ltd against any amount payable by Paul R Towns Ltd or Towns Agriculture Ltd to the seller.
In the case of goods despatched from the Sellers works, this contract shall be construed and take effect in accordance with English law and the Seller and Buyer submit to the jurisdiction of the English courts.
This contract is between Seller and Buyer as principals and is not assignable without the consent of the Seller. In the event that the buyer is an incorporated company the control of the buyer passes during the period of this contract from party or parties who had such control at the date of this contract to another party or parties, then the Seller shall have the right from the time when the change of control is bought to his notice, forthwith to terminate this contract, by written notice to the Buyer. For the purposes of this Condition control shall mean direct or indirect ownership of at least 50% of the issued voting share capital of Buyer and/or ability ton appoint and remove a majority of the Board of Directors of Buyer.
Effect of Breach
If Buyer shall fail to make a payment on the due date of any sum payable under this contract or take any delivery or being an incorporated company shall have a Receiver or Liquidator appointed or shall pass a resolution for winding up or a Court shall make an order to that effect or not being an incorporated company shall have a Receiving Order made against him shall have become Notour Bankrupt or shall enter into any Trust Deed for any composition or arrangement with Buyers creditors or if there shall be any breach by Buyer of the conditions of this contract or if there shall be any breach by the Buyer of the conditions of this contract. Seller may, without prejudice to it other rights or remedies, either terminate forthwith, the whole or any part of this contract or delay, suspend or cancel any further deliveries hereunder or require payment in advance for all or any such deliveries. The legal rights of Seller under this contract shall not be deemed to be waived or abrogated by reason or any forbearance or failure by Seller to enforce any condition or conditions.
a) Seller shall have the right to cancel or delay deliveries to reduce the amount delivered, if it is prevented from or hindered in or delayed in manufacturing or delivering by normal route or means of delivery by this contract or any part thereof through any circumstance beyond its reasonable control, including but not limited to war, riot, government requisitions of any kind, suspension or loss of means of transport, strikes, lock outs, labour disputes, fire, explosions, flood, accident, failure, of any third party to supply the Seller, breakdown of plant or machinery or anything directly or indirectly interfering with the raw materials or manufacturer, supply, shipment, arrival or delivery of the Goods. During any such period of cancellation, delay or reduction, Buyer shall, upon prior written notice to Seller, have the right to purchase elsewhere at his own risk and cost, such quantities of the goods as may be necessary to cover his current requirements and irrespective of whether or not Buyer makes any such arrangements aforesaid, Seller shall be under no liability arising out of its failure to deliver and the period of this contract shall not be extended nor shall subsequent deliveries during the unexpired portion of this contract be increased in size or frequency except with the prior written consent in writing of the Seller.
b) Buyer shall be under no liability to Seller if, due to circumstance beyond reasonable control of the Buyer, Buyer is prevented from or delayed in taking delivery of the goods or any part thereof at the due delivery date. The period of this contract shall not be extended nor shall subsequent deliveries during the unexpired portion of the contract be increased in size or frequency.
Long or Continuing Contracts
If the period of this contract exceeds twelve calendar months, Buyer shall give reasonable notice to Seller, before the second and each subsequent period of twelve calendar months, of his estimated consumption for such twelve month period and where such estimates are greater than the original estimate give to the Seller at the commencement of this contract, Seller will use reasonable endeavours to supply such increased quantity but shall be under no liability to Buyer for failure to do so but if Seller is unable to supply the whole or any part of such increased quantity, Buyer may purchase the excess elsewhere.
Warranty and Limitation of Liability
(i) The goods supplied hereunder, are warranted to accord with the specification provided by the Seller or, if there is not such specification, to be within normal limits of industrial tolerance.
(ii) The total liability of Seller, for breach of this warranty (or any other claim based on any defect in the goods) shall not exceed replacement of the goods shown to be defective or, at the Seller option, reimbursement of the priced received by him for the goods.
(iii) Buyer shall give written notice in the goods to the Seller, within seven days of the date of delivery, to enable the complaint to be investigated before the remainder of the consignment is used for returned and no liability shall attach to Seller hereunder, unless and until this procedure has been carried out.
(iv) Not with standing anything in this sub clause contained, Seller shall be under no liability to Buyer, after the placing of the goods in Buyer container, or after any admixture of the goods with any other goods, whether a previous delivery or otherwise, of after any processing of the goods.
(b) Seller gives no warranty as to the fitness of the goods for any particular purpose, even though that purpose may have been made known to the Seller and not such warranty is to be implied from the name or description under which the goods are sold.
c) Subject only to the conditions of sub clause (a) of this clause, all warranties, conditions and statements express or implied statutory or otherwise and whether contained in literature (whether provided by Seller or Sellers manufacturers or suppliers) or otherwise are exclude and Seller will in no way be liable for any loss or damage whatsoever, whether direct or consequential arising from the supply, application or use of goods, whether caused by Sellers negligence or otherwise and is not liable for any infringement of patent rights arising out of the use of the goods by Buyer or Buyers instructions or specifications express or implied.
Admixture and transfer
Where the contract between Seller and Buyer is for the admixture by Seller of products at Buyer direction and/or for the transfer of products by Seller at Buyer direction from one container to another, it shall be Buyer sold and entire responsibility to ensure that the products concerned and the containers to be use are entirely suitable for such admixtures and/or transfer, in the event of any loss or damage occurring due to the Sellers breach of contract or negligence, Sellers responsibility shall be limited to refund the cost of the materials and Buyer shall not be entitled to claim further sum and further shall hold Seller indemnified against any third party claim for damage, injury or consequential loss.
Waste Products and Packaging
Where Buyer supplies product for admixture or transfer which in the opinion of Seller is not compatible with Sellers normal waste disposal procedures it is Buyers responsibility to remove all unused product, packaging whether contaminated or not and any washing or clean down residues collected from Sellers processes or equipment within 14 days of a written request by Seller. All associated cost of such removal and subsequent disposal shall be the responsibility of Buyer. Should Buyer fail to remove any unused product, packaging whether contaminated or not and any washing or clean down residues as prescribed above, Seller shall be a liberty to arrange for their disposal without further recourse to Buyer and all associated costs shall be the responsibility of Buyer.
Buyer acquires no proprietary interest in any claim or title whatsoever, to any trade marks, trade names, colour schemes or manner of presentation, whether belonging to the Seller or Sellers suppliers and Seller reserves the right at any time to require Buyer forthwith to discontinue the use in any manner whatsoever of such trade marks, tare names or manner of presentation.
The risk in the goods shall remain in Seller, until the point of delivery named in this contract, when it shall be transferred to the Buyer. Where not point of delivery is so named, transfer will take place at the point of departure of the Sellers works or warehouse. The goods shall be deemed to have been delivered complete and in a satisfactory condition, unless in the case of:
a) Damage, non-delivery or partial; loss of any separate part of the consignment, notification is received by the carrier and Seller in writing other than on the delivery note, within three days of the date of delivery and that the goods have been signed for as not examined.
b) Non-delivery of the entire consignment, notification is received in writing by the Seller within fourteen days of the sending to the buyer of Sellers advice of dispatch or invoice.
Unless this condition is observed, Seller shall be under no liability whatsoever, in respect of loss or damage in transit or non-delivery of the whole or any part of the goods.
Reservation of Title
(i) Ownership of goods delivered under this contract, shall remain with Seller, which reserves the right to dispose of such goods until payment in full has been made to the Seller, for all monies owing in respect of all goods delivered to Buyer by Seller, whether under this or any other contract or account.
(ii) If, in relation to the Law of England, clause (A)(i) above shall be held to be invalid to reserve Sellers title to goods delivered under this contract by reason of the reservation of title, until all goods delivered to Buyer by Seller have been paid for, then nevertheless, ownership of the goods delivered under this contract, shall remain with the Seller until those goods themselves have been paid for in full.
b) If Buyer shall, before the property in the goods has passed to him, use the goods in the manufacture or production of items or materials therefrom, whether or not in association with any other goods, or if the goods are mixed with any other goods, the items or materials or mixtures so produced, shall become the property of Seller b Buyer, whether under this or any other contract or account as aforesaid. The property in any such items or mixtures shall pass to the Seller at the moment of manufacturing or mixing. Until payment of monies owing shall have been made to Seller, Buyer shall keep the items or materials or mixtures so produced for Seller as trustee for Seller and shall keep or store such items or materials in such a manner that they are clearly identifiable as Seller property. Buyer may, nevertheless, sell those items or material so mixtures in the normal course of his business and deliver them to purchasers thereof provided always that, so long as Seller remains unpaid, Buyer shall, if required by Seller to do so, assign to Seller, the rights which Buyer has, as against this purchase, arising out of such sales.
c) If any payment is overdue, whether under this or any other contract between Seller and Buyer, Seller may, without prejudice to any other right of Seller, recover or recall any or all of the goods, the title to which remains in Seller by virtue of sub clause (a) hereof or any or all of the items or materials which become the property of Seller by virtue of sub clause (c) hereof and may, whether by itself or by agents duly appointed, enter upon the Buyers premises for that purpose.
Where any goods, materials or packaging is held in storage by Seller on behalf of the Buyer, the Seller shall have a general lien against the Buyer, where Buyer is the owner of such goods, for any monies whatsoever due from Buyer to Seller. If such a lien is not satisfied within a reasonable time, Seller may, at its absolute discretion sell the goods, or part thereof, as agent for the Buyer and apply the proceeds towards the monies due and the expenses of the retention, insurance and sale of the goods and shall, upon accounting to Buyer for any balance remaining be discharged from all liability whatever in respect of the goods. Where Buyer is not the owner of the goods, Seller shall have a particular lien against the said owner, allowing Seller to retain possession, but not to dispose of, the goods against monies due from Buyer in respect of the Goods.
Seller gives no warranty that the crates, drums, boxes, pallets or other types of packaging, whether or not belonging to or supplied by Seller, in which the goods are supplied are suitable for further transportation of the goods beyond the point of delivery or Sellers works or warehouse where no point of delivery is named in the contract and Seller accepts no responsibility for any injury, loss or damage whatsoever, whether direct or consequential arising from the continued use of such crates, drums, boxes, pallets or other types of packaging after delivery. It shall be the duty of Buyer and Buyer undertakes with Seller in this contract that, whether in relation to the crates, drums, boxes, pallets or other types of packaging in which the goods are supplied, Buyer will, at all times, comply with the advise or instructions as to there use contained within the literature of Seller or Seller suppliers or manufacturers or marked on the goods or the crates, drums, boxes, pallets or other types of packaging or ;any labels thereon or attached hereto or supplied within.
Measurements of volume or weight and the like stated in the Sellers quotation, or any lists supplied by Seller or Sellers manufacturer or suppliers, are normal in accordance with normal trade usage and Buyer must be prepared to accept variations due to normal manufacturing or packing process or inherent in the nature of the goods.
Ex Stock Goods
Goods ex stock are offered subject to the same, not having been sold elsewhere prior to receipt of unqualified acceptance of Seller quotation.
Exclusion of Variations
Any contract or transaction between Buyer and Seller shall be deemed to be upon the foregoing conditions and also upon any special conditions or terms (if any) set out in the Sellers acknowledgment of order or invoice and no conditions in or incorporated or implied by Buyer acceptance or order forms shall apply to his contract. Without prejudice to the foregoing, no agent or representative of Seller, other than a Director or Company Secretary, has any authority to vary or omit these conditions or any of them and no such variations shall have effect unless in writing, signed by the Officer concerned.
In these conditions Seller refers to Cropwell Limited and/or subsidiaries associated or operating companies and Buyer refers to the individual firm or company named as such overleaf. Those expressions shall be construed accordingly notwithstanding that the transaction referred to consists of a contract either in whole or part for services or operations to be effected by Seller at Buyers request.
Delivery – Divisibility
Goods may be delivered by instalments in which case the Seller may invoice each instalment separately and the Purchaser shall pay such invoices in accordance with these Conditions. If the purchaser fails to make any payment in respect of any instalment when it becomes due then, without prejudice to any other rights of the Seller, the Seller may withhold deliveries of further instalments of the Goods. Any failure by the Seller to comply with its obligations in respect of any one or more instalments shall not affect the other instalments due under the purchase order/contract.
The definition of Incoterms (such as FOB, CIF etc) will be interpreted in accordance with the International Chamber of Commerce Edition, Year 2000, as amended thereafter from time to time.