| 1 | Definition & Interpretation |
| 1.1 | In these Standard Terms & Conditions of Sale: |
| ‘Seller’ means A J Charlton & Sons Limited | |
| ‘Buyer’ means the party who has contracted to buy the Products | |
| ‘Conditions’ means these Standard Terms & Conditions of Sale included in paragraphs 1 to 10 hereof and any agreed variations which have been confirmed in writing by the Seller to the Buyer | |
| ‘Contract’ means the Contract for the sale of the Products | |
| ‘Products’ means the Products (including any portion thereof) which the Seller agrees to supply in accordance with the Conditions of Sale | |
| ‘Working Days’ means any day other than Saturday, Sunday and public holidays | |
| ‘Writing’ includes letter, facsimile, email transmission or any other similar form of communication | |
| 1.2 | The headings in these Conditions are for convenience only and shall not affect their interpretation. |
| 2 | Wholesale, Consumer and Online Sales |
| 2.1 | The statutory rights of a Buyer who acts as a consumer as defined by Section 12 of the Unfair Contract Terms Act 1977 are not affected by the Conditions. |
| 2.2 | Where appropriate the rights of a Buyer as set out in the Consumer Protection (Distance Selling) Regulations 2000 are not affected by the Conditions. |
| 2.2.1 | In particular, where a Buyer, acting as an individual consumer, places an Order with the Seller on line then the Buyer has the right to cancel the Order from the moment it is placed until 7 working days from the day after the Buyer receives the Products, whether by collection or delivery. To exercise this right the Buyer must confirm a desire to cancel by sending such notice to the Seller in writing. This sub-clause 2.2.1 shall not apply to any Products which are not the Seller’s stock products, and which have been manufactured by the Seller to the Buyer’s specific design prior to receipt of a cancellation notice. |
| 2.2.2 | In the event that the Buyer exercises the right to cancel set out in paragraph 2.2.1 above, then the cost of returning the Products to the Seller must be borne by the Buyer. |
| 2.2.3 | Unless a lesser time is provided for by the Contract where an Order is placed on line the Seller will deliver to the `Buyer the Products, or make them available for collection from the Seller’s premises, within 30 days from the day the Seller receives the Order |
| 3 | Application of these Conditions |
| 3.1 | The Seller shall sell and the Buyer shall purchase the Products in accordance with these Conditions, which shall govern the Contract to the exclusion of any other Terms & Conditions, subject to which any quotations accepted or purported to be accepted or any order is made or purported to be made by the Buyer. |
| 3.2 | No waiver of or variation to these Conditions shall be binding unless agreed in writing by the Seller to the Buyer. |
| 3.3 | The Buyer warrants that it will not act upon and acknowledges the Seller shall not be liable to the Buyer for any advice or recommendations and/or representations given by or on behalf of the Seller before or after the Contract was entered into unless such are confirmed by the Seller in writing to the Buyer. |
| 4 | Price & Quotations |
| 4.1 | Any Quotation issued by the Seller to the Buyer shall be deemed to be accurate for a period not exceeding 30 days, such days to include Saturdays, Sundays and Public Holidays, after which time no warranties or assurances can be given by the Seller to the Buyer as to the accuracy of the Quotation. |
| 4.2 | No assurance can be given by the Seller that the Products referred to in a Quotation by the Seller to the Buyer shall be available to and unsold for the Buyer at such time as the Buyer may offer to purchase the Products on the basis of the Quotation provided by the Buyer to the Seller. |
| 4.3 | The price of the Products and any variation thereto under the Contract shall be that agreed between the Buyer and the Seller. |
| 4.4 | The Seller reserves the right to increase the price of the Products where such increase is attributable to any change or delay in performance of the Contract caused by any action, default or request of the Buyer, or in consequence of any event beyond the control of the Seller. |
| 4.5 | Where the price of the Products has increased in accordance with clause 4.4 above, the Buyer shall have the right (save where the Products have been specifically manufactured to its specification) to cancel the Contract within 3 working days of being notified of the increase in price. |
| 4.6 | Save where otherwise indicated, all prices are exclusive of Value Added Tax where applicable. |
| 4.7 | Subject to any terms which may have been agreed between the Seller and Buyers to whom credit has been approved, the Seller shall be entitled to invoice the Buyer for the price of the Products on or at the time of delivery to the Buyer, and payment shall be due immediately upon receipt of the Invoice. |
| 4.8 | If the Buyer fails to make any payment on the due date then the Seller will be entitled to charge the Buyer in accordance with the prevailing provisions of the Late Payment of Commercial Debts Regulations 2002 (as amended). |
| 5 | Acceptance & Placement of Orders |
| 5.1 | No Order shall be deemed accepted by the Seller, unless confirmed in writing by the Seller but the Seller shall be entitled to waive this condition either expressly or by conduct. |
| 5.2 | The Seller reserves the right to make changes in the specification of the Products which do not materially affect their description. |
| 5.3 | The Seller shall have the right to vary the quantity of any Contract item by ten per cent (10%) or by any other permitted margin appearing in any Contract made by the Seller to satisfy the Contract with the Buyer. Save as otherwise provided for by the Consumer Protection (Distance Selling) Regulations 2000 no Contract may be cancelled by the Buyer except with the written agreement of the Seller, and on terms that the Buyer shall indemnify the Seller in full against all and any loss, including loss of profit, which may be incurred by the Seller as a consequence of the cancellation. |
| 5.4 | Unless otherwise provided for by the Contract |
| 5.4.1 | Sizes of Products given by the Seller are approximately only and within normally trade tolerances |
| 5.4.2 | Moisture contents quoted are a fair average moisture content and cannot be guaranteed. |
| 5.5 | Where the Buyer has requested the Seller to manufacture or process any Products to its specification, the Buyer warrants that such a request and resulting Products will not infringe any patent, copyright, design, trademark or other industrial or intellectual property rights of any third party, and in the event of any breach of this warranty the Buyer indemnifies the Seller against all losses and costs incurred as a consequence. |
| 6 | Delivery of Products |
| 6.1 | Where the Contract provides for the Products to be collected by the Buyer from the Seller’s premises, the Seller shall notify the Buyer when the Products are available for collection, and the Buyer shall promptly take delivery of the Products. In the event that the Buyer delays or prevents such collection, then the Seller shall be entitled to treat such conduct as a repudiation of the Contract and, on giving notice to the Buyer, treat the Contract as terminated or, at the Seller’s option, determine the method of storage appropriate for the Products at the Seller’s premises and charge the Buyer a storage cost at a rate of 0.5% of the Invoice value of the Products (in addition to the Invoice value of the Products) per day. |
| 6.2 | Where the Contract provides for delivery by the Seller to the Buyer’s premises then the Seller shall notify the Buyer of an intention to deliver, and the Buyer will make available its premises for acceptance of the Products, and will provide the necessary labour and equipment to unload the vehicle and/or container without undue delay. |
| 6.3 | In the event that the driver of the Seller’s delivery vehicle determines that the premises nominated by the Buyer for acceptance of the product are unsuitable, or if the necessary labour and/or equipment is inadequate or inappropriate then the Seller may return the Products to the Seller’s premises and, until such time as the Buyer’s premises and/or means of unloading are improved and/or corrected, the Seller shall be entitled to charge the Buyer storage costs at the rate specified in clause 6.1 above, together with the reasonable costs of and occasioned by the failed delivery. |
| 6.4 | Where the Contract provides for the Products to be delivered in instalments, each instalment shall constitute a separate contract `and any failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions, where such failure arises by reasons beyond the Seller’s control, shall not entitle the Buyer to treat the Contract as a whole as repudiated. |
| 6.5 | The time for delivery of the Products shall not be of the essence under the Contract unless previously agreed by the Seller in writing to the Buyer. |
| 6.6 | If the Seller fails to deliver the Products and becomes liable to the Buyer under these conditions in respect of such failure, the Seller’s liability shall be limited to the Invoice value of the Products and under no circumstances shall the Seller be liable to the Buyer for loss of profit or any consequential loss whatsoever. |
| 7 | Passing of Risk & Property in the Products |
| 7.1 | The Buyer shall assume the risk of damage to or loss of the Products; |
| 7.1.1 | when, in accordance with the Contract, the Seller notifies the Buyer that the Products are available for collection by the Buyer from the Seller’s premises, or |
| 7.1.2 | when, in accordance with the Contract, the Products are to be delivered to the Buyer’s premises, at the time of delivery, or at the time when the Seller has been unable to effect delivery in consequence of the Buyer’s failure to make available its premises or has failed to provide the necessary labour and equipment to unload the vehicle and/or container. |
| 7.2 | Irrespective of the passing of risk in the Products, the property in the Products shall not pass to the Buyer until the Seller has received in cash or cleared funds, payment in full of the price of the Products and any interest due thereon, and payment in full of the price of all other Products agreed to be sold by the Seller to the Buyer for which payment is then due. |
| 7.3 | Until such time as the property in the Products passed to the Buyer in accordance with clause 7.2 above, the Buyer shall hold the Products as the Seller’s agent and bailee and shall keep the Products entirely separate from those of the Buyer and/or any third parties, and clearly stored and marked in such a way as to indicate that they remain the property of the Seller |
| 7.4 | Whilst property in the Products may not have passed to the Buyer, the Buyer shall nevertheless be entitled to resell or use the Products in the ordinary course of its business, but shall account to the Seller for the proceeds of sale of the Products and/or insurance proceeds and shall keep all such sale proceeds/insurance proceeds separate from any monies or property of the Buyer and/or third parties |
| 7.5 | Notwithstanding the fact that the Products have been delivered to the Buyer, as long as property in the Products remains vested in the Seller (and the Products are still in existence and have not been resold in the ordinary course of business) the Seller shall be entitled at any time to require the Buyer to deliver up the Products to the Seller and if the Buyer fails to do so forthwith to enter upon the premises of the Buyer where the Products are stored and repossess the Products and by this sub-clause the Buyer hereby permits such right of entry. |
| 7.6 | If pending the passing of property in the Products to the Buyer, the Products become converted or assimilated into other Products belonging to the Buyer, then the Seller shall have the ownership of and title to such other Products and the provision of clauses7.3, 7.4 and 7.5 hereof shall apply to such Products |
| 7.7 | The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of the Seller but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable. |
| 8 | Claims & Liability |
| 8.1 | Unless the Contract specifically provides that one or more Products are sold with a warranty, Products are not sold as fit for any particular purpose and any term, warranty or condition expressed, whether implied or statutory to the contrary, is excluded. |
| 8.2 | The Buyer must provide the Seller in writing with notice of any claim arising out of or in connection with the Contract no later than 3 working days from the date when the Products are collected or delivered. In default, all claims other than those arising out of or in connection with defects not discoverable from a full and proper examination of the Products, shall be deemed to be waived. It is the responsibility of the Buyer properly to examine all Products upon receipt or collection. |
| 8.3 | Any claims in respect of latent defects shall in any event be deemed to be waived 12 months after the Products are collected or delivered. |
| 8.4 | The Seller shall be under no liability for shortage or damage to Products in transit, or for deviation, misdelivery, delay or detention unless the Seller and any third party carrier are advised thereof in writing within 3 working days and a claim is made on the Seller and any third party carrier in writing within 7 working days after the termination of transit (as defined under the prevailing conditions of carriage of the Road Haulage Association). Notice upon a consignment or delivery note will not constitute notice in writing for the purposes of this sub-clause. |
| 8.5 | The Buyer shall not be entitled to pursue any claim in respect of Products other than those that are made available for inspection by the Seller. |
| 8.6 | No liability shall arise on the part of the Seller under the Contract in the event that any delay in performing or failure to perform any of its obligations in relation to the Products was attributable to any cause beyond the Seller’s control, or any failure on the part of the Buyer to comply with these Conditions. |
| 8.7 | The liability of the Seller to the Buyer arising under, out of or in connection with this Contract or the Products, and howsoever arising, shall not exceed the invoice price of the Products being the subject matter of any claim. |
| 9 | Determination of Contract |
| 9.1 | The Seller shall have the right forthwith to determine any Contract then subsisting, and upon written notice of such determination being passed to the Buyer’s last known address, any subsisting Contracts shall be deemed to have been determined without prejudice to any claim or right the Seller may otherwise make or exercise upon the happening of any of the following events:- |
| 9.1.1 | if the Buyer shall make default in or commit a breach of the Contract or of any other of its obligations to the Seller |
| 9.1.2 | if any distress or execution should be levied upon the Buyer’s property or assets |
| 9.1.3 | if the Buyer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy |
| 9.1.4 | if any Petition or Receiving Order in bankruptcy shall be presented or made to the Buyer |
| 9.1.5 | if the Buyer is a Limited Company and any resolution or Petition to wind up such Company’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented |
| 9.1.6 | if a Receiver of such Company’s undertakings, property or assets or any part thereof shall be appointed. |
| 10 | Miscellaneous |
| 10.1 | This Contract shall be governed by the Laws of England & Wales. |
| 10.2 | Any dispute and/or claim which cannot be settled shall (save in the case of the sale of Products to an individual consumer) be referred to arbitration by a sole arbitrator, to be appointed by the parties or in default of agreement by the President of the Law Society for the time being and the decision of the arbitrator shall be binding on both parties. |
| 10.3 | No waiver on the part of 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. |
| 10.4 | Save where liability is expressly admitted on the part of the Seller, the Buyer shall not be entitled to withhold or set off payment of any amount due to the Seller under the terms of this Contract, whether in respect of any claims for faulty or defective goods or for any other reason. |
| 10.5 | Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to the other party at its Registered Office or principal place of business or such other address as may be at the relevant time have been notified pursuant to this provision to the party giving notice. |
Terms & ConditionsMLA2017-04-28T10:18:00+01:00