In these conditions of sale:-
“The Seller” means Cardentity ltd
“The Buyer” means the person who agrees to buy the goods from the Seller.
“The Goods” means the goods which the Seller is to supply in accordance with these Conditions of sale. Any reference to “The Goods” shall, where appropriate, include a reference to part of them.
2) Terms of Sale
2.1 These Conditions of Sale form the whole agreement between the Seller and the Buyer and shall not be removed or varied in any way. No other express terms , written or oral, shall be incorporated into the contract.
2.2 These Conditions of Sale shall override any other terms which the Buyer may subsequently seek to impose.
The Sellers quotation is based upon information supplied by the Buyer before the quotation is given. Where any subsequent information is submitted which would involve a material alteration in specification or method of manufacture of the goods, the Seller reserves the right at its option either to amend the quotation to cover any additional costs arising from such alteration or to rescind the contract. If the Seller rescinds in these circumstances the Buyer shall have no claim against the Seller but the Seller shall retain its other rights and remedies.
4) The Price
4.1 The price of the Goods is the price stated in the Sellers quotation or such other price as is expressly agreed by the Seller and the Buyer. Any quotations given by the seller are valid for 30 days only.
4.2 In the event of the price not being fixed by clause 4.1, the price is the price listed in the Sellers published price list current at the date when the contact is made.
4.3 Where at any time before the delivery of the Goods:-
4.3.1There is an increase in the cost of materials or labour: or
4.3.2There are currency fluctuations increasing the cost of materials; or
4.3.3There is an increase in the Sellers overhead expenses
The Seller may adjust the price accordingly
4.4 The price of the Goods in the Sellers quotation does not unless otherwise stated on the quotation include freight/postage and packing all of which will be charged for and paid by the Buyer as an addition to the price shown in the quotation.
4.5 The price of the Goods stated in the Sellers quotation and charge for postage and packing does not include Value added Tax which will be added to the Invoice at the applicable rate and paid by the Buyer.
5.1 Delivery of Goods shall be by the Seller delivering the Goods to an independent carrier chosen by the Seller, for onward transportation to the Buyer, in accordance with the buyers delivery instructions.
5.2 If the Buyer fails to accept the Goods or fails to give the Seller adequate delivery instructions then the Seller may:-
5.2.1 Store the Goods until actual delivery to the Buyer or until the Goods are disposed of under clause 5.2.2. The buyer shall be liable for the costs of storage and insurance of the goods under this clause.
5.2.2 Sell the Goods at the best price readily obtainable. The Buyer shall be liable to pay the costs of the sale. Further, if the Goods are sold for less than the price payable by the Buyer, the Buyer shall be liable to pay the Seller the difference in price.
This does not affect any other right or remedy the Seller may have.
5.3 Any delivery dates stated are approximate only and the Seller is not liable for any delay in delivery of the Goods, however caused. Time of delivery is not of the essence of the contract.
6.1 The Seller may invoice the Buyer for the price of the Goods on or at any time after the Seller delivers the Goods to the independent carrier in accordance with clause 5.1
6.2 The Buyer must pay the price for the Goods by the end of a thirty day period commencing from the date stated on the invoice, unless payment in advance or on delivery is requested. The time for payment of the price is of the essence of the contract.
6.3 The Seller reserves the right to suspend deliveries where payment is not received in accordance with 6.2 or in accordance with any alternative arrangements which shall be agreed in writing between the parties. No cash or other discount will be allowed.
7) Cancellation of orders
Orders for Goods may not be cancelled or suspended without the Sellers prior written consent. The Seller shall be under no obligation to consent but if the Seller does consent the Buyer agrees to indemnify the Seller against any loss incurred by the Seller wholly or in part by such cancellation or suspension.
8) Property and Risk
8.1 Ownership of the Goods remains with the Seller and will not pass to the Buyer until the following occurs:-
8.1.1 The Seller is paid for all of the Goods and no other amounts are owed by the Buyer to the Seller in respect of other Goods supplied by the Seller
8.2 The Buyer must store the Goods separately from any other goods until they become the Buyers property
8.3 If the Buyer is overdue in paying for the Goods or any other goods supplied by the Seller, the Seller may if still the owner of the Goods, recover and resell them. The Seller may enter the Buyer’s premises for this purpose. This does not affect any other right of the Seller.
8.4 Until the Buyer has paid the Seller for the Goods and all other Goods which the Seller has supplied to the Buyer:-
8.4.1 The Buyer holds the Goods on trust for the Seller.
8.4.2 If the Buyer sells the Goods, the Buyer shall hold the proceeds of the sale on trust for the Seller in a separate Bank account
8.4.3 The Seller may trace proceeds of sale that the Buyer receives into any Bank or other account which the Buyer maintains.
8.4.4 If the Buyer sells the Goods, the Seller may, by written demand, require the Buyer to assign to the Seller the Buyer’s right to recover the price from its purchaser.
8.4.5 The Buyer must not assign to any other person rights arising from a sale of the Goods without the Sellers written consent.
8.5 Risk in the Goods passes to the Buyer when the Seller delivers the goods to an independent carrier in accordance with clause 5.1
9.1 The Buyer must carefully examine the Goods immediately on delivery of them and must notify the Seller in writing of any short delivery or any defects reasonably discoverable on careful examination. This notification must be received by the Seller within 7 working days commencing the day of delivery to the Buyer. “Working days” means any day from Monday to Friday which is not a statutory Bank Holiday. In the absence of notification the Seller excludes all liability in respect of any short delivery or any defect which should reasonably have been discovered on careful examination.
9.2 Except in respect of death or personal injury caused by the Sellers negligence, the Seller shall not be liable for any consequential or indirect loss suffered by the Buyer whether this loss arises from breach of a duty in contract or tort or in any other way (including loss arising from the Sellers negligence). Non-exhaustive illustrations of indirect loss would be:-
9.2.1 Loss of profit;
9.2.2 Loss of Contracts;
9.2.3 Damage to the Buyers property or property of any other person;
9.2.4 Personal injury to the Buyer or any other person, other than that caused by the Sellers negligence
The Buyer accepts that it is the Buyer’s responsibility to insure against these risks.
9.3 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller’s total liability for any one claim or the total of all claims arising from any one act or default of the Seller (whether arising from the Seller’s negligence or otherwise) shall not exceed the price of the Goods as defined in clause 4
9.4 The Seller shall not be liable for any failure to deliver the Goods arising from circumstances outside the Sellers control.
9.4.1 Non exhaustive illustrations include act of God, war, riots, explosion, abnormal weather conditions, fire, flood, Government action, strikes, lockouts, delay by suppliers, accidents and shortage of materials, labour or manufacturing facilities.
9.4.2 If the seller is prevented from delivering in the above circumstances, it will notify the Buyer of the fact in writing within 10 days commencing with the agreed delivery date.
9.4.3 If the circumstances preventing delivery are still continuing 3 months from and including the date the Seller sends such notice, then either party may give written notice to the other cancelling the contract. Such written notice must be received whilst the circumstances are continuing.
9.4.4 If the contact is cancelled in this way, the seller will refund any payment which the buyer has already made on account of the price (subject to a deduction of any amount which the Seller is entitled to claim from the Buyer) but the seller accepts no liability to compensate the Buyer for any further loss or damage caused by the failure to deliver.
If the Buyer:-
10.1 Being a Company.
10.1.1 Has a petition for presentation for its winding up; or
10.1.2 Passes a resolution for voluntary winding-up (other than for the purpose of bona fide amalgamation or reconstruction);or
10.1.3 Enters into a voluntary arrangement with its creditors; or
10.1.4 Becomes subject to an administration order; or
10.1.5 Has a receiver appointed of all or any of its assets; or
10.2 Being an individual or firm,
10.2.1 Becomes bankrupt or insolvent; or
10.2.2 Enters into a voluntary agreement with creditors;
Then the Seller shall be entitled to treat the contract as being at an end or suspend further deliveries under the contract. If the Goods have been delivered but not paid for, the price shall become due immediately, regardless of any previous agreement to the contrary.
Notwithstanding that a sample of the Goods has been exhibited to and inspected by the Buyer, it is hereby declared that such a sample was so exhibited and inspected solely to enable the Buyer to judge for themselves the quality of the bulk and not so as to constitute a sale by sample under the Contract. The Buyer shall take the Goods at their own risk as to their corresponding with the said sample or as to their quality, condition or sufficiency for any purpose.
12) Patents and Trade Marks
No representation, warranty or indemnity is given by the Seller that the Goods do not infringe any Letters Patent, trade marks, registered Designs or other industrial rights
The Buyer shall indemnify the Seller in respect of all damage or injury to any person or property and against all actions, suits, claims, demands, charges or expenses in connection therewith for which the Seller may become liable in respect of the Goods sold under this contract in the event that the damage or injury shall have been occasioned by the negligence of the Buyer or their servants or agents.
14) Defects After Delivery
The Seller will make good by repair or at the Seller’s option by the supply of a replacement defects which under proper use appear in the Goods within a period of 12 calendar months after the Goods have been delivered and arise solely from faulty design, materials or workmanship. Provided always that the defective parts are promptly returned by the Buyer carriage paid to the Sellers works unless otherwise arranged.
15) Exclusion of Liability
Apart from those terms set out above no other terms express or implied, statutory or otherwise form part of this contract.
16.1 Each of the sub-clauses in this clause is to be treated as separate and independent.
16.2 If a court finds that any sub-clause in this clause fails the requirements of reasonableness under the Unfair Contract Terms act 1977, the Seller nethertheless excludes the relevant liability to the extent that the court finds reasonable.
The buyer is not entitled to reject the Goods or nay part of them for
- Breach of s13 Sale of Goods Act 1979 as amended (description)
- Breach of s14 Sale of Goods Act 1979 as amended (satisfactory quality)
- Breach of any express terms relating to the description and quality of the Goods
- Such breach or misrepresentation devalues the Goods by more than 6%
- The Goods delivered are substantially different in nature from the contract goods
18) Proper Law
The Contract shall be governed by and read and construed in accordance with the law of England and Wales.