Terms and Conditions of Sale

 

1. Definitions and Interpretations

1.1 The Company: Stubbings Bros Ltd, whose place of business is at Chale Green, Ventnor, Isle of Wight, PO38 2JN

1.2 The Buyer: the person firm or company with whom this contract is made and his agent or principal. All such persons shall be deemed to have full knowledge of these terms.

1.3 The Goods: articles, materials, products, services or things the subject of the Contract, any items produced from the submission of the Goods to a process of alteration and, where the context so admits, any part of them.

1.4 The Property: any item produced through any form of combination of the Goods with any other item.

1.5 These conditions override any terms you may have put forward, unless we have agreed to any other conditions in writing.

1.6 These conditions do not affect your rights as a person dealing as a consumer, not for business purposes.

 

2. Formation of Contract

2.1 All orders are accepted by the Company subject to these terms.

2.2 Where terms contained in the Buyer's order forms are: -

(i) At variance with these terms the latter shall prevail

(ii) In addition to these terms the former shall not apply unless expressly agreed otherwise in writing by the Company in which event any such agreement shall apply only to the particular order concerned except where the Company agrees otherwise.

 

3. Quotations

3.1 No tender offer or quotation or other information sent or provided or made available by the Company or by any of its representatives to the Buyer will have contractual effect or be binding on the Company unless specifically confirmed in writing by the Company.

3.2 Prices stated in any quotation or acceptance of order are in accordance with the Company's prices ruling at that time but, unless otherwise specifically agreed in writing, all such prices are subject to variation and the price payable by the Buyer will be that ruling at the time of despatch or provision of the Goods.

 

4. Representations

All contracts are entered into solely on the basis that the Buyer places no reliance on, and is no way induced to enter such contract by, any representations made prior to the Contract by any employee or agent of the Company or by any other person whatsoever or contained in or supposed to be contained in any advertisement, advertising literature, brochure, catalogue, artists impression, photograph or any descriptive document or thing whatsoever and whether such representation is true of false and whether or not made negligently.

 

5. Variation, Suspension and Cancellation

5.1 Orders once accepted by the Company cannot be cancelled by the Buyer except with the Company's prior written consent. Such consent will be given only on terms that will indemnify the Company against all loss arising from such cancellation.

5.2 The Buyer will pay the Company's reasonable charges and indemnify the Company against all costs incurred as a result of the Buyer's delay or refusal to accept delivery or request to suspend work or the order or lack of instructions or interruption, delay, mistakes or work for the Company is not responsible.

5.3 Payment is due as stated in 12.1.2 with the time for payment being of the essence. Any failure to make full payment shall entitle the Company to treat the contract as repudiated by the buyer or to delay delivery until paid, and without incurring any liability whatsoever to the buyer for any non-delivery.

 

6. Despatch

6.1 Any time or date for delivery given by the Company is an estimate only and the Company will not be liable for the consequences of any delay.

6.2 The Buyer shall make all necessary arrangements to take delivery of the Goods on the day notified by the Company for delivery.

6.3 The Buyer will ensure the prompt turnaround of all transport vehicles used in delivering any Goods and will indemnify the Company against any loss arising from the delay in turn around.

6.3 Where the Company is to deliver the Goods to the Buyer such delivery will be at the Buyers nominated address on the Buyer's order form or given to the Company's representative.

6.5 Each delivery of Goods under the contract will constitute a separate Contract to which these terms will apply mutatis mutandis and failure to make any delivery will not terminate other Contracts.

 

7. Liability

The liability of the Company is: -

7.1 Limited in respect of any defect in or failure of the Goods to making good by replacement or to the repair of defects which appear under proper use and arise solely from faulty materials or workmanship provided that:

7.1.1 The Company is notified in writing of such defect or failure within a period on one calendar month from the date of despatch of the original Goods and

7.1.2 Such defective of failed parts are at the Buyers cost returned to the Company for examination.

7.2 Excluded in respect of indirect or consequential loss of damage whether arising from faulty goods or from any other cause.

7.3 The Company exercise no control over the Buyer's method of application use, directions for use or other aspects the Buyer's business and the Company accepts no liability whatsoever in respect of the results obtained or the consequences of the use of any Goods whether used singularly or in combination with other items.

7.4 All implied terms other than those as to the title are excluded from this Contract.

7.5 It is a condition precedent to any liability of the Company that the Buyer adheres to the terms of any manufacturer’s warranty and instructions relating to the Goods.

7.6 The Buyer agrees that the provisions of this clause are in all respects reasonable. If any part of this clause is held unreasonable every other part of this clause will remain in force.

 

8. Risk

8.1 The Goods will be at the Buyers entire risk after leaving the Company's premises and the Company will not be liable for any direct or indirect or consequential damage suffered in transit or otherwise.

8.2 Where Goods are accepted by the Company for repairs or servicing they are held by the Company at the Buyers sole risk and the Company will not be under any liability for loss or damage to the Goods however caused. The Buyer authorises the Company’s agents and employees to operate handle and drive any vehicle on the Buyers behalf.

 

9. Force Majeure

The Company will not be liable for failure to comply or delay in complying with any of the terms of this Contract if compliance has been delayed, hindered or prevented by any cause beyond its reasonable control included, but not limited to war, riot, lock-out, act of God, storm, fire, earthquake, explosion, flood, confiscation, action of any Government or Government Agency or shortage of supplies and the time of delivery will be extended by the period of such inability provided that either party may give written notice to the other cancelling deliveries which would otherwise have been made during such period if such period exceeds three months.

 

10. Determination of Contract

If the Buyer defaults as regards or is in breach of any of the Buyers obligations to the Company or if distress or execution is levied upon the Buyers assets if the Buyer makes or offers to make any arrangement or composition with creditors (whether under a statutory provision or otherwise) or fails to comply with a statutory demand or has any petition presented against it or (if the Buyer is a limited Company) any resolution to wind up the Company is passed (other than as regards solvent amalgamation or reconstruction) or if a receiver of the Buyer or its assets is appointed the Company may forthwith determine any such contract then subsisting by serving written on the Buyer at the address given by the Buyer without prejudice to any claim or right which the Company might otherwise have or exercise.

 

11. Reservation of Title

11.2 Subject to sub-clause 11.2: -

11.1.1 The Buyer will hold the Goods as the Company’s bailee

11.1.2 The Goods will remain in the ownership of the Company despite their submission to any process of manufacture, incorporation or alteration and

11.1.3 The Property will become the Company's property from when any process of mixture incorporation or combination starts until all moneys owing by the Buyer to the Company on any account and for any reason has been paid in full to the Company.

11.2 The Buyer may sell the Goods and the Property in the ordinary course of its trade but: -

11.2.1 Must not represent the Buyer as the Company’s agents

11.2.2 Will not be entitled to any indemnity from the Company in respect of and will indemnify the Company against all claims against the Buyer arising out of its sales or other disposition of the Goods or the Property.

11.2.3 As between the Buyer and its purchases the Buyer is deemed to sell as principal

11.3 The Buyer will: -

11.3.1 be accountable immediately on receipt to the Company for the proceeds of the Buyers sale of the Goods or the property either in full or to the extent that at such time the Buyer is indebted to the Company for the Goods.

11.3.2 Indemnify the Company is respect of all value added or other tax relating to the Buyers sale of the Goods or the Property

11.3.3 If so required by the Company at the Buyer's own expense.

11.3.3.1 Store the Goods in such a way that they are clearly identified and separated from the Buyers assets.

11.3.3.2 Assign to the Company all contractual and other rights in respect of agreements for the sale of the Goods or the Property.

11.3.3.3 Appropriate the proceeds of the sale of the Goods or the Property to a separate bank account so designated as to make it clear that it contains money payable to the Buyer to the Company under its relevant contract or contracts with the Company.

11.3.4 Insure the Goods and the property for their full value until property in them has passed to the Buyer.

11.4 All risks and liabilities as to the Goods and the Property will be those of the Buyer from the time: -

11.4.1 the Goods leave the Company's premises on route to the Buyer and

11.4.2 from the start of mixture, incorporation or combination in respect of the Property.

11.5 The Company may: -

11.5.1 re-take possession of the Goods or take possession of the Property or any part and

11.5.2 cease to make outstanding deliveries of the Goods or part of them without prior notice at any time when any money remains owing by the Buyer to the Company on any account.

 

12. Payment of Invoices

12.1 All invoices are payable in full within the period stated on them that is to say: -

12.1.1 Where they relate to Goods deemed by the Company to constitute Parts or Service within the calendar month following the date of the Invoice

12.1.2 In all other cases i.e. machinery or wholegood supply then within seven (7) days of the invoice date or the date of delivery of the goods, whichever is later.

12.2 Any sum not paid on its due date will carry interest in accordance with our statutory rights under the Late Payment of Commercial Debts (Interest) Act 1998, (after as well as before judgement) at the rate of 8% above the Bank of England Base Rate.

 

13. Defects

13. The Buyer must notify the Company in writing by recorded delivery: -

13.1 within seven days of the date of the Company’s advice note or invoice if the Goods have not been received

13.1.1 as soon as any alleged breakage or shortage becomes apparent

13.2 The Buyer will have no claim against the Company in any respect relating to any alleged defect or shortage if this is not complied with. Statutory rights are not affected.

 

14. Part Exchange

14.1 The Buyer warrants to the Company that any Vehicle or Goods taken by the Company in part exchange is the Buyers sole property and that it is not subject to any charge or encumbrance.

14.2 The Buyer agrees that any such item taken in part exchange will be in the same condition when delivered to the Company’s premises as it was when the Company agreed to accept it part exchange.

14.3 If the Buyer is in breach of any part of this clause payment to the Company for the Goods will be regarded as not having been made for the purposes of clause 11. If this clause is held unreasonable every other part of this clause will remain in force.

15. Set off and Counterclaim

The buyer may not withhold payment of any invoice or other amount due to the Company by reason of any right of set-off or counterclaim which the buyer may have or allege to have or for any reason whatsoever.

 

16. Miscellaneous

16.1 The Buyer authorises the Company to carry out and charge for any incidental work in addition to that ordered if in the Company's discretion this is necessary to comply effectively with the Buyers instructions and to supply such parts or materials as are required for such incidental work.

16.2 The Company's rights against the buyer will not be affected adversely by any concessions which the Company grants and no waiver of the Company’s rights will operate as a waiver in respect of any other breach.

16.3 The Company will be entitled to retain pending payment in full by the Buyer of any moneys owing on any account to the Company any Vehicles or Goods belonging to the Buyer on which the Company has been instructed to carry out work.

16.4 Each of the parties agrees that save in respect of statements made fraudulently it shall have no remedy in respect of any untrue statement upon which it relied in entering this Agreement and that its only remedies shall be for breach of contract

16.5 This contract and any dispute or claim arising out of it is subject to English law and the jurisdiction of the English Courts.

 

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