1.1 In these Terms:
“BUYER” means the person who accepts the Seller’s Written Quotation for the sale of the Goods or whose Written 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;
“SERVICES” means the service to be provided by the Seller to the Buyer in accordance with these Terms;
“SELLER” means Seymour Sign and Print Ltd, (Registered in England & Wales number 8446997) Registered address, 48 Union Street, Hyde, England, SK14 1ND.
“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 Writing between the Buyer and the Seller;
“WRITING”, and any similar expression, includes facsimile transmission, electronic mail.
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 The Seller shall sell and the Buyer shall purchase the Goods and Services in accordance with the Seller’s Written quotation, or the Buyer’s Written order, subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms.
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.
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.
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 quantity, quality and description of the Goods and Services and any specification for them shall be as set out in the Seller’s quotation or the Buyer’s order.
3.3 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.
3.4 The Seller reserves the right to make any changes in the specification of the Goods and Services which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied and the Services are to be provided to the Seller’s specification,
which do not materially affect their quality or performance.
3.5 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 and costs incurred by the Seller as a result of cancellation.
4 Price of the Goods and Services
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or until earlier
acceptance by the Buyer, after which time they may be altered in accordance with Condition 4.2 below.
4.2 The Seller reserves the right, by giving Written notice to the Buyer at any time before delivery, to increase the price of the Goods and Services 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, or to rectify a mistake in the price.
4.3 Where the Goods are to be delivered to the Buyer’s premises are damaged in transit the Buyer shall mark the third party courier’s documentation to indicate that the contents have been received “unchecked” and provide full co-operation to the Seller in making a claim against the third party courier.
4.4 Except where stated, the price is exclusive of any applicable value added tax.
5 Terms of payment
5.1 A minimum 50% of the quoted price is due and payable immediately upon the date of the Contract.
5.2 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller may invoice the Buyer for the balance of the price of the Goods and Services on or at any time after delivery of the Goods or provision of the Services, 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 failed to take delivery of the Goods or accept performance of the Services.
5.3 The Buyer shall pay the price 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.
5.4 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:
5.4.1 cancel the contract or suspend any further deliveries to the Buyer;
5.4.2 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of eight per cent per annum above the Bank of England base rate from time to time, until payment in full is made.
5.4.3 transfer the debt to a third party debt recovery agency, additional costs and interest will be incurred and added to the balance immediately.
6.1 Delivery of the Goods shall be made at the Buyer’s premises or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that 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 The Seller may deliver the Goods in instalments and provide the Services in stages, and each delivery and provision shall constitute a separate contract and failure by the Seller to deliver or provide any one or more of the instalments or stages in accordance with these Terms or any claim by the Buyer in respect of any one or more instalments or stages 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 provide the Services 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 or supplied over the price of the Goods and Services.
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.
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, but the Buyer may use the Goods in the ordinary course of its business.
7.4 Until such time as the property in the Goods passes to the Buyer, 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.
8 Warranties and liability
8.1 Subject to the following provisions the Seller warrants that the Goods supplied and the Services provided will correspond with their specification at the time of delivery or performance and will be free from defects in material, workmanship and design (other than a design specified by the Buyer) for a period of 3 months from the date of delivery or performance.
8.2 In the event that the Goods and / or Services do not comply with the specification due to a defect in material, workmanship or design (other than a design specified by the Buyer) then the Seller will at its option repair or replace such Goods and / or re-perform or refund the price of such Services.
8.3 The above warranty is given by the Seller subject to the following conditions:
8.3.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
8.3.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in Writing), misuse, alteration or repair of the Goods without the Seller’s approval or as a result of a defect in the surface to which the Goods are attached or applied;
8.3.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.4 Any repaired or replacement Goods or re-performed Services will be liable to repair or replacement and / or re-performance or refund under the terms specified in Condition 8.1 for the unexplored portion of the 3 month period from the original date of delivery of the replaced Goods or from the original date of provision of the re-performed Services.
8.5 The Buyer shall be deemed to have accepted the Goods 48 hours after delivery to the Buyer. 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 shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.6 Except in respect of death or personal injury caused by the Seller’s negligence 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 or provision of the Services (including any delay or failure to supply the Goods or provide the Services in accordance with the Contract or at all) or their use 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 and Services, 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, terrorism, 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.
8.8 Where the Buyer has delivered any item of equipment, plant, machinery or any vehicles to the Seller’s premises for the purposes of attachment or application of the Goods or performance of the Services then the Seller accepts no liability whatsoever (save for personal injury or death as a result of the Seller’s negligence) for any damage to the equipment, plant, machinery or vehicle, indirect, special or consequential loss or damage, loss of profit, costs, expenses or other claims for compensation whatsoever whether caused by the negligence of the Seller, its employees or agents or otherwise.
8.9 The Buyer acknowledges that the above provisions of this Condition 8 are reasonable and reflected in the price, which may be higher without those provisions, and the Buyer will accept such risk and / or insure accordingly.
9 Insolvency of Buyer
9.1 If the Buyer makes a composition or voluntary arrangement with its creditors or becomes bankrupt or 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 the Buyer ceases, or threatens to cease, to carry on business then the Seller may cancel the Contract or suspend any further deliveries or provision 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.
10.1 Any notice 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 All future contracts between the Buyer and Seller shall be deemed subject to these Terms unless varied in writing.
10.4 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.
10.5 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the exclusive jurisdiction of the English courts and any claim arising under this contract shall be brought in the Manchester County Court.