CARGOSTOP INTERNATIONAL LTD – TERMS AND CONDITIONS OF SALE
THE BUYER’S ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CLAUSES 5, 11, 13 AND 14
1. BASIS OF CONTRACT In these conditions the term “the Seller” is CargoStop International Ltd – trading at Studio House, Heckworth Close, Severalls Business Park, Colchester, Essex, CO4 9TB, but shall include any premises from which CargoStop UK may operate in the future. The term “the Buyer” refers to any person, firm or company whether incorporated or not which purchases goods of whatever nature, whether manufactured by the Seller or not and which are sold by the Seller to the Buyer. The term “the Goods” refers to the goods to be purchased by the Buyer from the Seller under the terms of this Contract. The placing of any order whether verbally or in writing by the Buyer shall constitute unqualified acceptance of these conditions.
2. PRICE Prices are exclusive of the cost of carriage and of value added tax, and any other tax or duty. Prices are provisional only and are subject to adjustment to take into account any increase in the Seller’s costs or overheads, and any exchange fluctuations which cause the Seller’s costs to increase in relation to the prices quoted. Prices will not, however, be subject to any further adjustment once the Seller has accepted an order from the Buyer.
3. PROPERTY IN GOODS (a) Notwithstanding any agreed terms of payment (See Clause 10) the Goods are not sold or delivered on credit, but on the Condition that the ownership of the Goods shall remain with the Seller and no property in the Goods, whether legal or equitable shall pass from the Seller such conditions being a condition precedent and on condition that the Goods will be held by the Buyer as bailee and will be stored separately, and in such manner that they can be readily identified as the property of the Seller, until the payment of the full price has been received (i) of all Goods subject of this contract, and (ii) of all Goods the subject of any other contract between the Seller and the Buyer. (b) Notwithstanding the provision of (a) above, all Goods after delivery are at the Buyer’s risk and must be paid for notwithstanding the destruction, theft, or any damage thereof however caused. (c) If the Buyer fails to pay for the Goods on the due date or if the Buyer goes into receivership or is declared bankrupt (or any equivalent thereof) or enters into a composition with its creditors, or if the Buyer, being a company, goes into liquidation or into receivership or is otherwise declared insolvent or prohibited from trading, then the Buyer shall immediately notify the Seller thereof and shall ensure: (i) that the proceeds of resale or other dealing shall in any period preceding payment of the full price as aforesaid be held by the Buyer in a separate account as trustee thereof for the Seller and (ii) that the Buyer shall keep accurate records of the Goods resold, or otherwise dealt with by the Buyer and shall include in those records details of the price of any resale, the identity and address of the purchaser and the date the resale price was paid if at all. (iii) in the event of the determination or repudiation of the contract (howsoever occurring) the Seller is hereby irrevocably authorised to enter into the premises of the Buyer and repossess the Goods and any other Goods in the Buyer’s possession the property in which is vested in the Seller (iv) the Buyer will keep the Goods free from, and will indemnify the Seller against any charge, lien, or any other encumbrance thereon (v) in the event of failure to pay for Goods by the Buyer to the Seller (see note c above) the Seller shall be a preferential creditor (see note vi below) of the buyer should an independent operator be instructed to handle the financial affairs of the Buyer in connection with a winding up order, liquidation, declaration of insolvency or the Buyer going into receivership, or any other issue. (vi) PREFERENTIAL CREDITOR Definition. A preferential creditor is a creditor who is paid in preference to other creditors. Examples of unspecified preferential creditors could be The Inland Revenue, Customs and Excise, or banking institutions. In the terms of this contract the Seller is specifically noted as a preferential creditor.
4. PASSING OF RISK The risk in the Goods carried shall pass to the Buyer on delivery to the Buyer’s designated delivery point or to the carrier nominated by the Buyer (whichever shall first occur).
5. LIABILITY (a) The Buyer should note on the carrier’s advice note any shortages or defects apparent on delivery. (b) The quantity invoiced and delivered by the Seller may vary from the amount ordered by an amount not exceeding 5%. The Buyer must, however, inspect the Goods on delivery in any event and notify the Seller within 2 days of delivery in the case of any of the following (i) any shortage, oversupply or damage not noted on the carrier’s advice note (ii) incorrect Goods supplied (iii) specification or dimensions of Goods differ from Buyer’s written order that was accepted by the Seller (iv) defective Goods, which might reasonably be expected to be apparent on inspection. If a claim is substantiated, the Seller will, at the Seller’s option, deliver the balance of the Goods, replace defective Goods or take the Goods back and refund the Purchaser in full any price already paid. (c) Subject to clauses 5 (a) and (b) above, if, within one month after delivery, the Buyer can demonstrate to the Seller that any of the Goods sold are defective because of bad materials or workmanship in manufacture, the Seller will at the Seller’s option replace them or take back the Goods at the Seller’s expense, and refund the Buyer in full, any price already paid. (d) The Seller’s dimensions and specifications may vary from the written order of the Buyer. Unless the Seller has specifically accepted responsibility in writing, and signed an acceptance, no dimensions or specifications form part of the Contract. (e) Subject to clause 5 (f), The Seller’s liability under this clause 5 and under any other clause, condition, or warranty, or representation express or implied, statutory or otherwise, and any liability of the Seller in tort (including negligence) in relation to the Goods sold or any defect in them, shall be limited to the invoice value of the Goods. (f) Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
1) death or personal injury caused by negligence;
2) fraud or fraudulent misrepresentation;
3) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
4) defective products under the Consumer Protection Act 1987.
(h) Subject to clause 8.3, the following types of loss are wholly excluded:
1) loss of profits;
2) loss of sales or business;
3) loss of agreements or contracts;
4) loss of anticipated savings;
5) loss of or damage to goodwill; and
6) indirect or consequential loss.
(i) The Buyer shall indemnify the Seller, and keep the Seller indemnified against all actions, claims costs, damages or losses incurred by the Seller which arise from the Seller acting on instructions from the Buyer, or from the Buyer’s actions.
(j) This clause 5 shall survive termination of the Contract.
6. DELIVERY (i) If no specific time for delivery is stated in the Contract the Buyer shall be bound to accept the Goods when they are ready for delivery by the Seller. If the Buyer makes a specific request for a particular day or a particular time of day, or means of delivery, the cost thereof shall be charged to the Buyer. (ii) No liability shall be accepted by the Seller for any reason should a delivery not arrive at a specific time.
7. DELIVERY BY INSTALMENTS/SCHEDULED DELIVERY Where an order by the Buyer from the Seller calls for delivery by several instalments, each such instalment shall be treated as a separate contract and the rights of either party shall be construed accordingly save only that the Seller may suspend delivery thereof whilst payment is overdue in respect of previous instalment save only that such suspensions shall not apply when the Buyer is within the credit terms agreed by the Seller in writing.
8. NON DELIVERY The Buyer shall notify the Seller in writing of the non-receipt of any Goods expected, within 3 days of the expected delivery date. The Seller shall be under no liability whatsoever to the Buyer in respect thereof regardless of any conditions of carriers or insurance.
9. CANCELLATION If Goods have been made by the Seller in response to an order from the Buyer, the Seller will not accept cancellation of the order. However, in the case of products normally stocked by the Seller, cancelled Goods will incur a 20% restocking charge if the Goods have already been dispatched to the Buyer, and a 10% restocking charge if an order has been received by the Seller from the Buyer but not yet dispatched. In the case of Goods being returned to the Seller, subject to the terms of this clause, the Goods shall be returned safely and undamaged to the Seller, and cost of the return is the responsibility of the Buyer.
10. CREDIT TERMS (i) If credit terms have been agreed in writing by the Seller, the Buyer must pay for the Goods within 30 days from the date of the invoice. (ii) The Buyer may not withhold payment of any amount due to the Seller because of any claim or set-off that the Buyer may have against the Seller. (iii) Interest is chargeable on any amounts which remain unpaid beyond 30 days from the date of invoice. The interest rate is 3% annum over the base lending rate for the time being of Lloyds TSB Bank plc. (iv) Interest shall accrue on a daily basis, and run on after as well as before, any judgement and be payable on demand.
11. CONDITIONS AND WARRANTIES The Seller gives no conditions or warranty that the Goods supplied are fit for any particular purpose for which the Buyer may require the same, and the Buyer shall satisfy itself prior to ordering that the Goods are fit and suitable for the purpose for which the Buyer requires them.
12. VARIATION OF CONTRACT Any Goods whatsoever supplied by the Seller to the Buyer are supplied only on these conditions and no variation of or additions to them shall have any effect unless it is in writing signed by, or on behalf of, the Seller. Should any of these conditions conflict with any conditions stated on the Buyers order, these conditions shall prevail.
13. STATUTORY REQUIREMENTS The Seller gives no warranty that the design, construction or quality of the Goods supplied will comply with all relevant requirements of any statutory rule or order or other instrument having the force of Law which may be in force at the date of sale.
14. DISCLAIMER Lifting slings are only for use with lorry mounted cranes and are not suitable for, and are not to be used for, lifting using high level cranes. The Seller accepts no liabilities arising from failure to observe this restriction.
15. RECOMMENDATIONS Any verbal or written recommendation made by the Seller as to the use to which any Goods sold to the Buyer may be put, shall not imply any responsibility on the part of the Seller for any damage liability cost claim or expense suffered by the Buyer, or any third party following such recommendation.
16. INFRINGEMENT OF PATENTS When Goods are manufactured by the Seller in accordance with the Buyer’s specifications and requirements, the Buyer shall indemnify the Seller against all costs claims and expenses, and expenses incurred by the Seller in respect of the infringement or alleged infringement by such Goods of any patents registered designs or other rights belonging to third parties.
17. COPYING OR REPRODUCTION OF STATIONERY OR MARKETING MATERIAL Copying or reproduction of any printed material drawn, designed or photographed by the Seller or on the Seller’s behalf, is expressly prohibited unless specific permission has been granted in writing by the Seller. This material would include, but not be confined to, any marketing material including brochures, advertisements, logos, Terms and Conditions and printed stationery.
18. TRADING TITLES, STRAP LINES & PRODUCT DESCRIPTIONS It is prohibited to use for commercial gain or otherwise, the Trading Titles, Strap Lines, slogans, non-generic product descriptions, catalogue reference numbers, or part codes specifically used by the Seller.
19. FORCE MAJEURE The Seller shall do all in its power to perform the terms of any contract to which these conditions form part and in particular to meet all delivery dates, but shall not be liable for any failure to observe, or breach of any of the terms hereof by reason of War, Riots, Commotion,
Strikes, Lockouts, Trade Disputes, Fires, Breakdown, Theft, Interruption of Transport, Government Action, Accident, delay in delivery by the Seller’s suppliers or any other cause happening beyond its control.
19. NOTICES Unless otherwise provided in writing communication or notice under the contract shall be made or given by sending the same by ordinary pre-paid first class post in the case of the Seller to its current address, and in the case of the Buyer to their last known address, and if so sent, shall be deemed to be made or given two days after the date when posted.
21. CLERICAL ERRORS & OMISSIONS Clerical errors and omissions are subject to correction without notice.
22. SEVERABILITY If any of these conditions, or any part thereof is rendered void or unenforceable by any legislation to which it is subject or by any rule of Law it shall be void or unenforceable to that extent and no further.
23. WAIVER Any waiver by the Seller of any breach of any of these Conditions by the Buyer shall be limited to that breach. No delay by the Seller in acting upon a breach shall constitute a waiver.
24. THIRD PARTY RIGHTS No person who is not a party to this Contract has any rights under the Contract (Rights of Third Parties) Act 1999 to enforce any term under this Contract but this does not affect any right or remedy which exists or is available apart from that Act.
25. DISPUTES Any arising out of the Contract shall if the Seller so requires be referred to Arbitration in England in accordance with the Arbitration Act 1950, or any modification thereof for the time being in force.
26. LAW AND JURISDICTION The proper law of the Contract shall be English law and any difference or dispute hereunder shall except where otherwise herein provided, be dealt with by the Courts of England save that the Seller shall be entitled to bring proceedings against the Buyer in the Courts of the jurisdiction where the Buyer resides or carries on business. The Buyer hereby submits to the jurisdiction of the English courts accordingly.
These terms and conditions have been especially commissioned by CargoStop International Ltd. Copying, or using them for any purposes other than the Terms and Conditions for CargoStop International Ltd is expressly forbidden.
©CARGOSTOP INTERNATIONAL LTD. CO4 9TB. 2013.