Conditions of Sale
1
Interpretation
1.1
In
these Terms:
"BUYER" means the person who
accepts the Seller's quotation 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 parts for them) which the Seller is to
supply in accordance with these Terms;
"SELLER" means Glassworks
International Limited a company registered in
"CONTRACT" means the
contract for the sale and purchase of the Goods;
"TERMS" means the standard
terms of sale set out in this document and (unless the context otherwise
requires) includes any special terms agreed in between the Buyer and the
Seller;
"WRITING", and any similar
expression, includes facsimile transmission and
electronic mail or other forms of electronic communication.
1.2
A
reference in these Terms to a provision of a statute shall be construed as a
reference to that provision as amended, re‑enacted or extended at the
relevant time.
1.3
The
headings in these Terms are for convenience only and shall not affect their
interpretation.
2
Basis
of the sale
2.1
Unless
otherwise agreed the Seller shall sell and the Buyer shall purchase the Goods
in accordance with the Seller's quotation subject in all cases to these Terms,
which shall govern the Contract to the exclusion of any other terms including
any terms of the Buyer.
2.2
No
variation to these Terms shall be binding unless agreed in Writing between the
authorised representatives of the Buyer and the Seller.
2.3
The
Seller's 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 any such
representations which are not so confirmed, but nothing in these Terms affects
the liability of either party for fraudulent misrepresentation.
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 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 Seller's authorised
representative.
3.2
The
Buyer shall be responsible to the Seller for ensuring the accuracy of the terms
of any order (including any 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 the Goods and any specification for them
shall be as set out in the Seller's quotation (if accepted by the Buyer) or the
Buyer's order (if accepted by the Seller).
3.4
If
the Goods are to be manufactured or any process is to be applied to the Goods
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, trade mark or other industrial or intellectual property
rights of any other person which results from the Seller's use of the Buyer's
specification or for any damage to persons or property arising from dealing
with the Goods concerned and the Seller accepts full responsibility for the
process being appropriate for the Goods and their intended use.
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 statutory or E.U.
requirements or, where the Goods are to be supplied to the Seller's
specification, which do not materially affect their 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),
costs (including the cost of all labour and materials 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 Seller's quoted price. All prices quoted are
valid for 30 days only or until earlier acceptance by the Buyer, after which
time they may be altered by the Seller without giving notice to the Buyer.
4.2
The
Seller reserves the right, by giving notice to the Buyer at any time before
delivery, to increase the price of the 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 limitation, any foreign exchange fluctuation, currency
regulation, alteration of duties, significant increase in the costs 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 or failure of the Buyer to
give the Seller adequate information or instructions.
4.3
Except
as otherwise stated in the Seller's quotation or in any price list of the
Seller, and unless otherwise agreed in Writing between the Buyer and the
Seller, all prices are given by the Seller include delivered to the Buyer
unless otherwise agreed
4.4
The
price is exclusive of any applicable value added tax, which the Buyer shall be
additionally liable to pay to the Seller.
5
Terms
of payment
5.1
Subject
to any special terms agreed in Writing between the Buyer and the Seller, the
Seller may invoice the Buyer for the price of the Goods on or at any time after
delivery of the Goods, unless the Goods are to be collected by the Buyer 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 30 days of the date of the
Seller's invoice, and the Seller shall be entitled to recover the price,
notwithstanding that delivery may not have taken place and the property in 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 limiting any
other right or remedy available to the Seller, the Seller may:
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 appropriation by the Buyer); and
5.3.3
charge
the Buyer interest (both before and after any judgment) on the amount unpaid,
at the rate of 3% per cent per annum above Barclays 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
Delivery
6.1
Delivery
of the Goods shall be made to the Buyer at the agreed place.
6.2
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 however caused. Time
for delivery shall not be of the essence of the Contract unless previously
agreed by the Seller in Writing. The Goods may be delivered by the Seller in
advance of the quoted delivery date on giving reasonable notice to the Buyer.
6.3
Where
the 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 of the
instalments in accordance with these Terms 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.
6.4
If
the Seller fails to deliver the Goods (or any instalment) for any reason other
than any cause beyond the Seller's reasonable control or the Buyer's fault, and
the Seller is accordingly 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.
6.5
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 limiting any other right or remedy available
to the Seller, the Seller may:
6.5.1
store
the Goods until actual delivery and charge the Buyer for the reasonable costs
(including insurance) of storage; or
6.5.2
sell
the Goods at the best price readily obtainable and (after deducting all
reasonable storage and selling expenses) account to the Buyer for the excess
over the price under the Contract or 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 tendered delivery of the Goods.
7.2
Notwithstanding
delivery and the passing of risk in the Goods, or any other provision of these
Terms, 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 and any other money due for whatever reason.
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 agent and bailee, and shall keep the
Goods separate from those of the Buyer and third parties and properly stored,
protected and insured and identified as the Seller's property (on its original
pallets under shrink wrap and with pallet identification tickets in place), but
the Buyer may resell or use the Goods in the ordinary course of its 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 separate from any monies or property of the Buyer and
third parties and in the case of tangible proceeds properly stored protected
and insured.
7.4
Until
such time as the property in the Goods passes to the Buyer (and provided the
Goods are still in existence and have not been resold), the Seller may at any
time require the Buyer to deliver up the Goods to the Seller and, if the Buyer
fails to do so forthwith, enter on any premises of the Buyer or any third party
where the Goods are stored and repossess the Goods.
7.5
The
Buyer shall not be entitled to pledge or in any way charge by way of security
for any indebtedness any of the Goods which remain the property of the Seller,
but if the Buyer does so all moneys owing by the Buyer to the Seller shall
(without limiting any other right or remedy of the Seller) forthwith become due
and payable.
8
Warranties
and liability
8.1
Subject
to the following provisions the Seller warrants that the Goods will correspond
with their specification at the time of delivery and will be free from defects
in material and workmanship at the time of delivery.
8.2
The
above warranty is given by the Seller 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 variation or specification supplied by the Buyer;
8.2.2
the
Seller shall be under no liability in respect of any defect arising from fair
wear and tear, wilful damage, negligence, abnormal working conditions or
misuse;
8.3
Subject
as expressly provided in these Terms, and except where the Goods are sold to a
person dealing as a consumer (within the meaning of the Unfair Contract Terms
Act 1977), all warranties, conditions or other terms implied by statute or
common law are excluded to the fullest extent permitted by law.
8.4
A
claim by the Buyer which is based on any defect in the quality or condition of
the Goods or their failure to correspond with specification shall (whether or
not delivery is refused by the Buyer) be notified to the Seller within seven
days after discovery of the defect or failure.
The Buyer must submit with all claims the pallet identification tickets
in support . If delivery is not refused, and the Buyer does not notify the
Seller accordingly, the Buyer shall not be entitled to reject the Goods and the
Seller shall have no liability for such defect or failure, and the Buyer shall
be bound to pay the price as if the Goods had been delivered in accordance with
the Contract and no claim may be made by the Buyer more than six months after
delivery.
8.5
Where
a valid claim in respect of any of the Goods which is based on a defect in the
quality or condition of the Goods or their failure to meet specification is
notified to the Seller in accordance with these Terms, the Seller may replace
the Goods (or the part in question) free of charge or, at the Seller's sole
discretion, refund to the Buyer the price of the Goods (or a proportionate part
of the price), in which case the Seller shall have no further liability to the
Buyer.
8.6
Except
in respect of death or personal injury caused by the Seller's negligence, or
liability for defective products under the Consumer Protection Act 1987, the
Seller shall not be liable to the Buyer by reason of any representation (unless
fraudulent), or any implied warranty, condition or other term, or any duty at
common law, or under the express terms of the Contract, for loss of profit or
for any indirect, special or consequential loss or damage, costs, expenses or
other claims for compensation whatsoever (whether caused by the negligence of
the Seller, its employees or agents or otherwise) which arise out of or in
connection with the supply of the Goods (including any delay in supplying or
any failure to supply the Goods in accordance with the Contract or at all) or
their use or resale by the Buyer, and the entire liability of the Seller under
or in connection with the Contract shall not exceed the price of the Goods,
except as expressly provided in these Terms.
8.7
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 limiting
the foregoing, the following shall be regarded as causes beyond the Seller's
reasonable control:
8.7.1
Act
of God, explosion, flood, tempest, fire or accident;
8.7.2
war
or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.7.3
acts,
restrictions, regulations, bye‑laws, prohibitions or measures of any kind
on the part of any governmental, parliamentary or local authority;
8.7.4
import
or export regulations or embargoes;
8.7.5
strikes,
lock‑outs or other industrial actions or trade disputes (whether
involving employees of the Seller or of a third party);
8.7.6
difficulties
in obtaining raw materials, labour, fuel, parts or machinery;
8.7.7
power
failure or breakdown in machinery.
9
Insolvency
of buyer
9.1
This
clause 9 applies if:
9.1.1
the
Buyer makes a composition or voluntary arrangement with its creditors or (being
an individual or firm) becomes bankrupt or (being a company) enters
administration or goes into liquidation (otherwise than for the purposes of
amalgamation or reconstruction), or a moratorium comes into force in respect of
the Buyer (within the meaning of the Insolvency Act 1986); or
9.1.2
an
encumbrancer takes possession, or a receiver is appointed, of any of the
property or 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 and notifies the Buyer accordingly.
9.2
If
this clause applies then, without limiting any other right or remedy available
to the Seller, the Seller may 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 or arrangement to the
contrary.
10
General
10.1
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 pursuant to this provision to the party giving the
notice.
10.2
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.
10.3
If
any provision of the Contract is held by a court or other competent authority
to be invalid or unenforceable in whole or in part the validity of the other
provisions of the Contract and the remainder of the provision in question shall
not be affected.
10.4
The
Contract shall be governed by the laws of England