TERMS AND CONDITIONS OF SALE
(a) "Buyer" means the firm, partnership, company or individual with whom the Contract is made,
(b) "Conditions of Sale" means these terms and conditions of sale,
(c) "Contract" means the contract for the sale of the Products or any parts of them between the Seller and the Buyer set out in the Order and these Conditions of Sale,
(d) "Products" means the Products set out in the Contract,
(e) "Order" means an order placed in accordance with the agreement to which these Conditions of Sale are attached,
(f) "Seller" means EQUINE AMERICA (UK) LIMITED, incorporated and registered in England (company number 037472736) whose registered office is at Solo House The Courtyard, London Road, Horsham, West Sussex, RH12 1AT, UK.
1. BASIS OF THE SALE
1.1 These Conditions of Sale apply to the supply of all Products by the Seller and are the only standard terms on which the Products may be sold, offered or provided any attempt by the Buyer to use its own terms and conditions of purchase shall be void.
1.2 Each Order from the Seller to the Buyer shall be deemed an invitation to treat for the Buyer to purchase the Products subject to these Conditions of Sale. Each acceptance of an Order by the Buyer from the Seller shall be deemed an offer by the Buyer to purchase the Products subject to these Conditions of Sale.
1.3 No Order shall be deemed to be accepted by the Seller until a written acceptance of the Order is issued by the Seller or (if earlier) the Seller commences to fulfil the Order in whole or in part. The Seller shall not be obliged to accept an Order, and shall not be obliged to give any reason for any such refusal.
1.4 No variation of these Conditions of Sale shall be binding unless agreed in writing by the Buyer and the Seller.
1.5 The Seller's employees or agents are not authorised to make any representations or warranties concerning the Products including but without prejudice to the generality of the foregoing; the quality of the Products, fitness of the Products for a particular purpose of the Buyer, or their compatibility with any other products unless (a) confirmed in writing in a Contract or (b) agreed between the parties by way of variation of the Contract and these Conditions of Sale. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
1.6 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 Products, which is not (a) confirmed in writing in a Contract or (b) agreed between the parties by way of variation of the Contract and these Conditions of Sale 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 arecommendation which is not so confirmed.
1.7 It shall be the Buyer's responsibility to ensure that the Products correspond and conform with the requirements of any statute or regulation from time to time in force and affecting the manner in which the Buyer carries on his business or uses the Products or with practices carried on by prudent persons carrying on the same or similar business as the Buyer.
1.8 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be Subject to correction without any liability on the part of the Seller.
2. ORDERS AND SPECIFICATIONS
2.1 The Buyer shall be solely responsible for ensuring the accuracy of the terms of any Order submitted to the Seller and for giving the Seller any necessary information relating to the Products within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
2.2 The quantity, quality and description of and any specification for the Products shall be those set out in the Order.
2 3 The Seller reserves the right to make any changes in the specification of the Products which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Products are to be supplied to the Seller's specification, which do not materially affect their quality or performance.
2.4 No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller. The Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation.
3. PRICE OF THE PRODUCTS
3.1 The price of the Products shall be the price prevailing for the Products as listed in the Seller's price list current at the date of delivery of the Products or in the case of delivery of the Products by instalment, current at the date of delivery of each instalment unless specifically agreed in writing by the Seller and the Buyer at the date of acceptance of the Buyer's order for the Products that the price of the Products shall be a fixed price (the "Price"). All Products are sold to the Buyer ex Works (lncoterms 2000).
3.2 Where the price for the Products has been agreed to be a fixed price in accordance with Condition
3.1 the Seller reserves the right by giving notice to the Buyer at any time up to the date of delivery to increase the price of the Products 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, change in legislation or prospective change in legislation, government action, significant increase in the costs of labour, materials or other costs of manufacture or costs passed on by its supplier), any change in the delivery dates, quantities or specifications for the Products 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,
3.3 Except as otherwise agreed in writing between the Seller and the Buyer the price of the Products excludes packaging and cases which will be charged at cost, and does not include insurance and transport costs which are the responsibility of the Buyer.
3.4 The Price is exclusive of any applicable sales taxes, any other charges (including bank charges), taxes and import and export duties, all of which the Buyer shall pay in addition on when it is due to pay for the Products.
3.5 Risk in the Products shall pass to the Buyer on delivery of the Products to the Buyer Ex Works (lncoterms 2000) as a mended from time to time.
4. TERMS OF PAYMENT
4.1 Unless otherwise agreed in writing the Seller shall be entitled to invoice the Buyer for the price of the Products on receipt of an order. The Buyer shall make all payments due under the Contract in full without deduction whether by way of set-off, counterclaim, discount, statement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
4.2 The Seller shall not be deemed to have received any payments until cleared funds are received. All payments payable under the Contract shall become due immediately on its termination.
4.3 Unless otherwise agreed in writing between the parties the terms of payment shall be in the case of Products delivered in the United Kingdom, within fourteen (14) days of the date of the Seller's invoice. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
4.4 If the Buyer fails to make any payment on the due date or the Seller becomes entitled for any reason to terminate the agreement to which these Conditions of Sale are attached, then the whole of the balance of the price of the Products then outstanding shall become due and payable forthwith and, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
4.4.1 cancel any Contracts, suspend any further deliveries of Products (whether in transit or ordered under any Contract) to the Buyer, refuse to accept any further orders for Products or resell any Products forming part of any Contract to any other person;
4.4.2 appropriate any payment made by the Buyer to such of the Products (or the Products supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer);
4.4.3 charge the Buyer interest on the amount outstanding at the due date at the rate of 8% per annum above the base rate of the Bank of England as applying from time to time;
4.4.4 make a storage charge for any undelivered Products at its rates current from time to time;
4.4.5 a general lien on all Products and property belonging to the Buyer and such lien shall be exercisable in respect of all sums lawfully due from the Buyer to the Seller, and the Company shall be entitled on the expiration of 14 days' notice in writing to dispose of such Products or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.
5.1 Delivery of the Products shall take place at the Seller's premises, unless otherwise agreed in writing. The Buyer shall take delivery of the Products within 14 days of the Seller's notification to the Buyer that the Products are ready for collection.
5.2 Any dates stated for delivery of the Products are approximate only and the Seller shall not be liable for any delay in delivery of the Products howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Seller reserves the right at its sole discretion to make partial deliveries of the Products and each part so delivered shall, for the purposes of payment, be deemed to be a separate Contract and may be invoiced separately. Any failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions of Sale or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to repudiate or cancel any other Contract or instalment. The Products may be delivered by the Seller in advance of the Order delivery date upon giving reasonable notice to the Buyer.
5.3 If the Seller fails to deliver the Products for any reason other than any cause beyond the Seller's reasonable control (as further defined in Condition 7.7) or the Buyer's fault, and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to issuing a credit to the Buyer at the pro rata price for any invoice raised against any such undelivered Products.
5.4 If the Buyer fails to take delivery of the Products or fails to give the Seller adequate delivery instructions at the time stated for delivery or within 14 days after notification under Condition 5.1 (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
5.4.1 store the Products until actual delivery and charge the Buyer for all reasonable costs and expenses (including, without limitation, storage and insurance) and risk in the Products shall pass to the Buyer as the Products will be deemed delivered, or
5.4.2 treat the Contract as repudiated and terminate the Contract with immediate effect and sell the Products 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.
5.5 Subject to Condition 7 or unless required to do so by any other of the Conditions of Sale the Buyer may not return the Products or any part of the Products to the Seller after delivery unless the Seller specifically agrees in writing to their return and in which case the Buyer shall be liable to pay the Seller a re-stocking charge, which the Seller will notify to the Buyer whenever necessary.
6. RISK AND TITLE
6.1 Notwithstanding delivery and the passing of risk in the Products, or any other provision of these Conditions of Sale, title 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 and all other sums then or which become due to the Seller on any account.
6.2 Until title in the Products passes to the Buyer, the Buyer shall hold the Products on a fiduciary basis as the Seller's bailee, and shall keep the Products separate from those of the Buyer and any third parties and properly stored, protected and insured and identified as the Seller's property.
6 .3 Until the property in the Products passes to the Buyer (and provided the Products are still in existence and have not been resold), 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 any premises of the Buyer or any third party where the Products are stored and repossess the Products.
6.4 On termination of the Contract, howsoever caused, the Seller's (but not the Buyer's) rights contained in this Condition 6 shall remain in effect.
7. WARRANTIES AND LIABILITY
7 .1 Subject to the conditions set out below the Seller warrants that the Products will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of three (3) months from the date of delivery.
7.2 The above warranty is given by the Seller subject to the following conditions:
7.2.1 the Seller shall be under no liability in respect of any defect a rising from improper storage or storage not in accordance with the manufacturer's or Seller's recommendations, willful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse, alteration or interference with the Products without the Seller's approval or use of the Products with other incompatible products;
7.2.2 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Products has not been paid by the due date for payment;
7.2.3 the Seller shall not be liable for breach if the Buyer continues to use the Products after the Seller has provided notice that use of the Products should cease.
7.3 Subject as expressly provided in these Conditions of Sale all warranties, conditions or other terms implied by statute or com mon law are excluded to the fullest extent permitted by law.
7.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Products or their failure to correspond with specification shall (whether or not delivery is ref used by the Buyer) be notified to the Seller within 14 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within 30 days after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Products and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the Price as if the Products had been delivered in accordance with the Contract.
7.5 Where any valid claim in respect of any of the Products which is based on any defect in the quality or condition of the Products or their failure to meet specification is notified to the Seller in accordance with these Conditions of Sale, the Seller shall at its option be entitled to adapt or replace the Products (or the defective part thereof) free of charge or, at the Seller's sole discretion, refund to the Buyer the price of the Products (or a proportionate part of the price), but this shall be the Buyer's sole remedy in relation to any breach of warranties in respect of the Products and the Seller shall have no further liability to the Buyer If the Seller requests the Buyer shall return, at the Seller's expense, the Products or defective part to the Seller.
7.6 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, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or da mage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which a rise out of or in connection with the supply of the Products or their use or resale by the Buyer, except as expressly provided in these Conditions of Sale.
7.7 Except in respect of death or personal injury caused by the Seller's negligence, the Seller's total liability to the Buyer in respect of each Order shall be limited to the total value of that Order.
7.8 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 failure to perform any of the Seller's obligations under the Contract where such delay or failure is due to any cause beyond the Seller's reasonable control, and in such circumstances the Seller shall be entitled to a reasonable extension of time for performing such obligations. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control Act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery, material breach of contract or other default of the Seller's suppliers or sub-contractors.
7.9 The Buyer warrants that the Products will be used accordance with the relevant specifications and recommendations for the Products supplied by the Seller. The Buyer also undertakes that it will not use the Products in any application other than as specifically permitted by the Seller and set out in its specifications, literature and/or the attached documentation unless the Buyer has first advised the Seller in writing of its intention and has obtained the Seller's written consent there to.
8.1 If any provision of these Conditions of Sale is held by any competent authority to be illegal, void, voidable, unreasonable, invalid or unenforceable in whole or in part, it shall to the extent of such illegality, voidness, voidability, unreasonableness, invalidity or unenforceability be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
8.2 The Contract shall be governed by and construed in accordance with the laws of England and the Buyer and the Seller hereby submit to the exclusive jurisdiction of the English Courts for the settlement of all disputes or claims which may arise out of or in connection with the Contract.
8.3 The Buyer shall not be entitled to assign or otherwise transfer the Contract or any of its rights or obligations thereunder without the prior written consent of the Seller.
8.4 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. 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.
8.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
8.6 Except as expressly provided otherwise, no remedy under these Conditions of Sale shall be exclusive of any other remedy and all remedies shall be cumulative.