1. INTERPRETATION.
1.1. In these conditions:
'BUYER' means the person who accepts a quotation of the Seller for the sale of
Goods or whose order for the Goods is accepted by the Seller.
'GOODS' means the goods (including any instalment of the goods or parts for
them) which the Seller is to supply to the Buyer subject to these Conditions.
'SELLER' means JOSEPH METCALF LIMITED or any subsidiary or associate company.
'CONDITIONS' means the standard terms and conditions of sale set out in this
document and (unless the context otherwise requires) includes any special terms
and conditions agreed in writing between the Buyer and the Seller.
'CONTRACT' means the contract for the purchase and sale of the Goods.
'WRITING' includes telex, cable, facsimile transmission, and comparable means of
communication.
1.2. Any reference in these Conditions to any provision of a statute shall be
construed as a reference to that provision as amended, re-enacted or extended at
the relevant time and to any regulations made under it..
1.3. The headings in these Conditions are for convenience only and shall not
affect their interpretation.
1.4. Where the Buyer consists of more than one person all such persons shall
jointly and severally be responsible for the obligations of the Buyer.
2. BASIS OF SALE.
2.1. The Seller shall sell and the Buyer shall purchase the Goods in accordance
with any written quotation of the Seller which is accepted by the Buyer or any
written order of the Buyer which is accepted by the Seller, subject in either
case to the goods being available and also to these Conditions, which shall
govern the Contract to the exclusion of any other terms and conditions subject
to which any such quotation is accepted or purported to be accepted, or any such
order is made or purported to be made, by the Buyer.
2.2. No variation to these Conditions shall be binding unless agreed in Writing
between the authorised representatives of the Buyer and the Seller and these
conditions supersede all previous conditions used by 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
and waives any claim arising from 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.
2.5. Any typographical, clerical or other error or omission in any sales
literature, quotation, price list, acceptance of offer, invoice or information
issued by the Seller shall be subject to correction without any liability on the
part of the Seller.
2.6. The Seller reserves the right to seek credit references from the Buyer and
in appropriate cases to obtain credit insurance before entering into any
contract.
2.7. The Seller's products are not sold on a sale or return basis unless
expressly stated to the contrary in writing.
2.8. No Contract will be concluded and the Seller will not be bound to supply
any Goods until such time as the Seller has confirmed its acceptance of an order
or its confirmation of an accepted quotation in writing
3. ORDERS AND SPECIFICATIONS.
3.1. The Buyer shall be responsible to the Seller for ensuring the accuracy of
the terms of an order (including any applicable specifications) submitted by the
Buyer, and for giving the Seller any necessary information relating to the Goods
within a sufficient time to enable the Seller to perform the Contract in
accordance with its terms.
3.2. The quantity, quality and description of and any specification for the
Goods shall be those set out in the Seller's quotation (if accepted by the
Buyer) or the Buyer's order (if accepted by the Seller).
3.3. If the Goods are to be manufactured or any process is to be applied to the
Goods by the Seller in accordance with a specification submitted by the Buyer,
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, insofar as it is fair and reasonable, to
make any changes in the specification of the Goods supplied at any time and
without notice. This includes any changes which are required to conform with any
applicable safety or other statutory requirements or which do not materially
affect their quality or performance. The current specification will be shown on
the container label or other document.
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 (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 cancellation.
3.6. The Seller's Goods are sold on the condition that they are resold in their
original containers and the Seller does not accept any liability for Goods sold
otherwise.
3.7. The invoice date for an order shall be as stated in clause 5.1.
4. PRICE OF THE GOODS.
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. Where the Goods are supplied for export from the United Kingdom, the
Seller's published export price list shall apply. All prices quoted are valid
for 30 days or until earlier acceptance by the Buyer.
4.2. The Seller reserves the right to increase the price of the Goods 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 changes in
delivery date, 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. It shall be
the Buyer's obligation to ascertain the price at which the goods are purchased.
4.3. Except as otherwise stated under the terms of any advice, quotation or in
any price list of the Seller, all prices are given by the Seller on a delivered
basis to the Buyer's address within the United Kingdom or to an address within
the United Kingdom nominated by the Buyer.
4.4. The Seller specifically reserves the right to impose a delivery surcharge
at it's discretion.
4.5. The price is exclusive of any applicable value added tax, which the Buyer
shall be additionally liable to pay to the Seller.
4.6. The Seller specifically reserves the right to impose a credit charge at its
discretion.
5. TERMS OF PAYMENT.
5.1. Subject to any special terms agreed in writing between the Buyer and the
Seller, the Seller shall be entitled to invoice the Buyer for the price of the
Goods on or at any time after delivery of the Goods, 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 notified the Buyer that the Goods are
ready for collection or (as the case may be) the Seller has tendered delivery of
the Goods.
5.2. Subject as hereinafter provided and unless otherwise stated on the Seller's
invoice or unless earlier demand for payment is made by the Seller as set out
below, the Buyer shall pay the price of the Goods within 28 days of the date of
the Seller's invoice, notwithstanding that delivery may not have taken place and
the property in the Goods has not passed to the Buyer. Furthermore the Buyer
shall not be entitled to withhold payment of any amount due by reason of any
dispute or claim nor shall the Buyer be entitled to set off against any amount
payable to the Seller any amount which is due now or in the future or for which
the Seller disputes liability. The time of payment of the price shall be of the
essence of the Contract. The Seller will issue receipts for payment only upon
request.
5.3. If the Buyer fails to make any payment on the due date then, without
prejudice to any other right or remedy available to the Seller, the Seller shall
be entitled to:-
5.3.1. cancel the Contract or suspend any further deliveries to the Buyer;
5.3.2. appropriate any payment by the Buyer to such of the Goods (or the goods
supplied under any other Contract between the Buyer and the Seller) as the
Seller may think fit (notwithstanding any purported appropriation by the Buyer);
and
5.3.3. charge the Buyer interest (both before and after any judgement) on the
amount unpaid, at the rate of 4 per cent per annum above The Royal Bank of
Scotland plc base rate from time to time or the rate from time to time in force
pursuant to the Late Payment of Commercial Debts (Interest) Act 1998, until
payment in full is made (a part of a month being treated as a full month for the
purpose of calculating interest);
5.3.4. cancel any settlement discount.
5.3.5. treat all contracts with that Buyer as at an end and all amounts then due
to the Seller shall be immediately due and payable irrespective of whether or
not the agreed period of credit has expired.
5.4 The Seller may without notice set off any sums from time to time owed to the
Buyer in or towards the satisfaction of all and any liabilities of the Buyer to
the Seller whether or not under this contract.
6. DELIVERY.
6.1 Delivery of Goods shall be made by the Seller delivering the Goods to the
Buyer's address or to an address nominated by the Buyer or as near as hard roads
and access permit.
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 howsoever
caused. Time for delivery shall not be of the essence unless previously agreed
by the Seller in Writing.
6.3 Where the Goods are to be delivered in instalments, each delivery shall
constitute a separate Contract and failure by the Seller to deliver any one or
more of the instalments in accordance with these Conditions or any claim by the
Buyer in respect of any one or more instalments shall not entitle the Buyer to
treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods 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 over the price of the Goods.
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 prejudice to 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) or storage; or
6.5.2. sell the goods at the best price readily obtainable and (after deducting
all reasonable storage and selling expenses) charge the buyer for any shortfall
below the price under the Contract.
7. RISK & PROPERTY (THE BUYER'S ATTENTION IS IN
PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 7).
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 that risk in the Goods shall pass to the Buyer as provided
for above full legal and equitable title and interest in all and any Goods
supplied to the Buyer shall remain with the Seller and shall not pass to the
Buyer until the Seller has received payment in cleared funds in full of all
amounts due and owing from the Buyer to the Seller for the time being (including
any interest accruing and owing to the Seller) and from time to time in respect
of all such Goods and all other Goods supplied by the Seller to the Buyer at any
time.
7.3. During such time as title in the Goods remains with the Seller, the Buyer
shall store or otherwise keep the Goods in accordance with such instructions as
the Seller may issue from time to time separately and in such a way as clearly
to indicate at all times that the Goods are owned by the Seller and shall not
remove obscure or delete any mark placed on the Goods by the Seller which may
enable the Goods to be identified.
7.4. During such time as title in the Goods remains with the Seller, the Buyer
shall have power to deal with or use the Goods and other Goods in which the
Goods are incorporated ("End Products") as fiduciary bailee of the
Seller in the normal course of the Buyer's business and to dispose of the Goods
or End Products by way of bona fide sale at full market value.
7.5. Upon any such sale by the Buyer of the Goods or End Products all rights
which the Buyer may have against the purchaser of them shall automatically vest
in the Seller. The Buyer shall indemnify the Seller and keep the Seller
indemnified in respect of any proceedings action or claim of any nature whatever
made or brought by the said purchaser against the Buyer in respect of the Goods
or End Products or any of them.
7.6. The Buyer should ensure that the proceeds of any sale by the Buyer of the
Goods or End Products shall be held in a separate designated bank account and
shall hold such proceeds as bare trustee for the Seller to the extent that any
sums remain unpaid to the Seller for Goods ordered by the Buyer.
7.7. Without prejudice to any other rights or remedies arising out of any breach
of contract by the Buyer, the Seller shall be entitled to repossess all or any
of the Goods and to take possession of all or any of the End Products upon the
happening of any of the events specified in clause 7.8.
7.8. The right to re-possess set out above shall arise if any of the following
events occur:
7.8.1 If the Buyer goes into either compulsory or voluntary liquidation or a
resolution is passed for such liquidation (save for purpose of reconstruction or
amalgamation) or if a receiver is appointed in respect of the whole or any part
of the Buyer's assets or if the Buyer makes an assignment for the benefit of or
composition with its creditors generally or threaten to do any of these things
or apply for a moratorium under the terms of Schedule A1 of the Insolvency Act
1986 (as amended by the Insolvency Act 2000) or any judgement is made against
the Buyer or any similar occurrence or analogous proceedings under any
jurisdiction affects the Buyer.
7.8.2 If the Buyer is declared bankrupt or a petition is presented for its
bankruptcy or (where the Buyer is a partnership) any partner in the Buyer is
declared bankrupt or a petition is presented for his bankruptcy or any similar
occurrence or analogous proceedings under any jurisdiction affects the Buyer.
7.9 For the purpose of any repossession pursuant to sub-clause 7.7 the Seller or
its agent shall be entitled to enter upon any relevant land or buildings with
such transport as may be necessary and for the avoidance of doubt the Seller
shall be entitled to take such steps as are necessary to gain entry to any
premises where the Goods or End Products are stored and take possession of them
including (but not limited to) forcing entry if the Buyer does not co-operate
with a request from the Seller for access to such premises. All costs incurred
by the Seller or its agent in such repossession shall be borne by the Buyer.
7.10 The Buyer shall at its own expense take out and secure the continuance of
an all-risk insurance policy in respect of all the Goods supplied in accordance
with the agreement between the Seller and the Buyer to their total value at
replacement cost. Such policy shall cover the Goods from and including the date
on which the risk in the Goods passes to the Buyer under these Terms. The Buyer
shall procure that the Seller's interest in the Goods shall be recorded by an
endorsement on the policy specifying the Seller as loss payee (and shall provide
the Seller with a copy of it) and (to the extent that the Seller has not
received full payment in respect of any products) any sums which are received
under any such policy may be credited against any sums owing to the Seller.
7.11 Tools used by the Seller in the production of Goods shall belong to the
Seller notwithstanding that the Buyer may be required to pay a sum in respect of
the cost of such tools.
7.12 The Buyer shall not create nor permit nor suffer to be created any
security, charge, lien, or other encumbrance of any sort over products owned by
the Seller and the Buyer shall at the Seller's request produce to the Buyer
satisfactory evidence of the acknowledgement by any person having the benefit of
any encumbrance over any of the Buyer's assets of the Seller's title in the
Goods and End Products pursuant to these Terms.
7.13 The Buyer warrants that the Buyer is not at the time of entering into the
agreement with the Seller insolvent and knows of no circumstance which would
entitle any creditor to appoint a receiver or to petition for winding up or
bankruptcy or to exercise any other rights over or against the Buyer's assets or
to take any analogous proceedings in any jurisdiction.
8. WARRANTIES AND LIABILITY (THE BUYER'S ATTENTION IS IN
PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 8.)
8.1. Subject to the conditions set out below the seller warrants that the Goods
manufactured and/or sold by the Company are fit for the normal purpose for which
they have been designed at the time of delivery and will be free from defects in
material and workmanship for a period of one week from the date of their initial
use or one week from delivery, whichever is the first to expire.
8.2. The above warranty is given by the Seller subject to the following
conditions:
8.2.1. 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;
8.2.2. 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), not
ensuring proper husbandry is practised, misuse or alteration or repair of the
Goods without the Seller's approval;
8.2.3. 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;
8.2.4. the above warranty does not extend to parts, materials or equipment not
manufactured by the Seller, in respect of which the Buyer shall only be entitled
to the benefit of any such warranty or guarantee as is given by the manufacturer
to the Seller.
8.3. Subject as expressly provided in these Conditions and except where the
Buyer is a consumer (within the meaning of the Unfair Contract Terms Act 1977),
or where the provisions of the Consumer Protection Act 1987 would impose
liability, all warranties, conditions or other terms implied by statute or
common law are excluded to the fullest extent permitted by law.
8.4. Where the Goods are sold under a consumer transaction (as defined by the
Consumer Transactions (Restrictions on Statements) Order 1976) the statutory
rights of the buyer are not affected by these conditions.
8.5. Any claim by the Buyer which is based on any defect in the quality or
condition of the Goods or their failure to correspond with specifications or
shortage shall (whether or not delivery is refused by the Buyer) be notified to
the Seller in writing within 7 days from the date of delivery or (where the
defect or failure was not apparent on reasonable inspection) within a reasonable
time after discovery of the defect or failure or shortage. Goods shall only be
rejected with the Seller's written consent and in any event 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 the Seller shall have no liability for
such defect or failure or shortage and the Buyer shall be bound to pay the price
as if the Goods had been delivered in accordance with the Contract.
8.6. Where any valid claim in respect of any of the Goods which is based on any
defect in the quality or condition of the Goods or their failure to meet
specification or in respect of any breach of any implied warranty condition or
other term or any duty at common law on the part of the Seller is notified to
the Seller in accordance with these conditions, the Seller shall be entitled to
settle such claim by supplying to the Buyer Goods of the same specification and
quality as those originally ordered free of charge or, at the Seller's sole
discretion, refund to the Buyer the price of the Goods (or a proportion of the
price), but the Seller shall have no further liability to the Buyer.
8.7. Except in respect of death or personal injury caused by the Seller's
negligence or death, personal injury or damage to property caused by defective
product for which the Seller is liable under the Consumer Protection Act 1987
and for which there is no defence under that Act, 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 damage (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 arise out of or in connection with the supply of the
Goods or improper attention of correct husbandry or their use or resale by the
Buyer, except as expressly provided in these conditions.
8.8. The Seller shall not be liable to the Buyer to 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
prejudice to the generality of the foregoing, the following shall be regarded as
causes beyond the Seller's reasonable control:
8.8.1. Act of God, explosion, flood, tempest, fire or accident;
8.8.2. War or threat of war, sabotage, insurrection, civil disturbance or
requisition;
8.8.3. Acts, restrictions, regulation, bye-laws prohibitions, or measures of any
kind on the part of any governmental, parliamentary or local authority;
8.8.4. Import or export regulations or embargoes;
8.8.5. Strikes, lock-outs or other industrial actions or trade disputes (whether
involving employees of the Seller or of a third party);
8.8.6. Difficulties in obtaining raw materials, labour fuel, parts or machinery;
8.8.7. Power failure or breakdown in machinery.
8.9 As peat is a naturally occurring resource laid down over many years, the
Seller cannot be held liable to contamination and damage by foreign seed,
debris, and other erroneous objects that are not evident prior to the production
and delivery of the product.
8.10 All seeds offered for sale or sold by the Seller shall comply at the time
of delivery with either the UK Seeds Regulations currently in force or the
minimum standard of the EEC directive unless otherwise stated. In the event of
any seeds sold or agreed to be sold and not complying with the express terms of
the contract of sale or with any representation by it or by any duly authorised
agent on its behalf prior to, at the time of, or in any such contract, or any
seeds proving defective in varietal purity the Seller will, at its discretion,
replace the defective seeds free of charge to the Buyer or will refund all
payments made to the Seller by the Buyer in respect of the defective seeds and
this shall be the limit of its obligation. The Seller hereby excludes all
liability for any loss or damage arising from the use of any seeds supplied by
it and for any consequential loss or damage arising out of such use or any
failure in the performance of or any defect in any seeds supplied by it or for
any other loss or damage whatsoever save for, at its discretion, liability for
any such replacement or refund as aforesaid. Any express or implied condition,
statement or warranty, statutory or otherwise, not stated in these conditions is
hereby excluded. The price of any seeds sold or offered for sale by the Seller
is based upon the foregoing limitations upon its liability. Should the Buyer
require the Seller to be responsible for consequential loss or damage, it is
willing to negotiate increased terms for such liability.
8.11 GREEN WASTE DISCLAIMER. This product is manufactured using composted
vegetative matter from a variety of sources (Green Waste). Whilst the Seller
takes care in the process of manufacturing the final product it is not possible
when dealing with this type of material to remove all other organic and
inorganic matter from the Green Waste. In ordering and accepting delivery of
products containing Green Waste the Buyer agrees that the Seller does not give
any warranty as to the content, purity or suitability for any purpose of this
product and excludes liability for any loss (whether direct or indirect and
whether or not economic or consequential) however caused (including by the
negligence of the Seller or it's employees) arising from the presence in this
product of any harmful, deleterious or unwanted seeds, eggs, fungi, chemicals or
other contaminants of any nature, organic or inorganic, to the greatest extent
permitted by law.
9. INDEMNITY (THE BUYER'S ATTENTION IS IN PARTICULAR DRAWN
TO THE PROVISIONS OF THIS CLAUSE 9).
9.1. If any claim is made against the Buyer that the Goods as supplied by the
Seller infringe or that their use or resale in the form supplied by the Seller
infringes the patent, copyright, design right trademark or other intellectual
property right of any other person the Seller shall indemnify the Buyer against
loss, damages, costs and expenses awarded against or reasonably incurred by the
Buyer in connection with the claim or paid or reasonably agreed to be paid by
the Buyer in settlement of the claim provided that:
9.1.1. The Seller is given full control of any proceedings or negotiations in
connection with any such claim;
9.1.2. The Buyer shall give the Seller all reasonable assistance for the
purposes of any such proceedings or negotiations;
9.1.3. Except pursuant to the final award, the Buyer shall not pay or accept any
such claim, or compromise any such proceedings without the consent of the Seller
(which shall not be unreasonably withheld);
9.1.4. The Buyer shall do nothing which would or might vitiate any policy of
insurance or insurance over which the Buyer may have in relation to such
infringement and this indemnity shall not apply to the extent that the Buyer
recovers any sums under any such policy or cover (which the Buyer shall use its
best endeavours to do);
9.1.5. The Seller shall be entitled to the benefit of, and the Buyer shall
accordingly account to the Seller for all damages and costs (if any) awarded in
favour of the Buyer which are payable by or agreed with the consent of the Buyer
(which consent shall not be unreasonably withheld) to be paid by any other party
in respect of any such claim, and
9.1.6. Without prejudice to any duty of the Buyer at common law, the Seller
shall be entitled to require the Buyer to take such steps as the Seller may
reasonably require to mitigate or reduce any such loss, damages, costs or
expenses for which the seller is liable to indemnify the Buyer under this
clause.
10. INSOLVENCY OF BUYER.
10.1. This clause applies if:
10.1.1. The Buyer makes any voluntary arrangement with its creditors or makes or
permits to be made any application in relation to it for a moratorium pursuant
to section 1A or schedule A1 of the Insolvency Act 1986 as amended by the
Insolvency Act 2000 or becomes subject to an administration order or (being an
individual or firm) becomes bankrupt or (being a company) goes into liquidation
(otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2. an encumbrancer takes possession or a receiver is appointed, of any of
the property or assets of the Buyer; or
10.1.3. the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4. the Seller reasonably apprehends that any of the events mentioned above
is about to occur in relation to the Buyer and notifies the buyer accordingly.
10.2. If this clause applies, then without prejudice to any other right or
remedy available to the Seller, the Seller shall be entitled to cancel the
Contract or suspend any further deliveries 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 notwithstanding any previous
agreement or arrangement to the contrary.
11. EXPORT TERMS.
11.1 In these Conditions 'Incoterms' means the international rules for the
interpretation of trace terms of the International Chamber of commerce as in
force at the date when the contract is made. Unless the context otherwise
requires, any term or expression which is defined in or given a particular
meaning by the provisions of Incoterms shall have the same meaning in these
Conditions, but if there is any conflict between the provisions of Incoterms and
these Conditions, the latter shall prevail.
11.2 Where the Goods are supplied for export from the United Kingdom, the
provisions of this clause 11 shall (subject to any special terms agreed in
writing between the Buyer and the Seller) apply notwithstanding any other
provision of these Conditions.
11.3 The Buyer shall be responsible for complying with any legislation governing
the importation of the Goods into the country of destination and for payment of
any duties thereon.
11.4 Unless otherwise agreed in Writing between the Buyer and the Seller, the
Goods shall be ex-works.
11.5 The Buyer shall be responsible for arranging for testing and inspection of
the Goods at the Seller's premises before shipment. The Seller shall have no
liability for any claim in respect of any defect in the Goods which would be
apparent on inspection and which is made after shipment, or in respect of any
damage during transit.
11.6 The Buyer undertakes not to offer the Goods for resale in any country
notified by the Seller to the Buyer at or before the time the Buyer's order is
placed, or to sell the Goods to any person if the Buyer knows or has reason to
believe that person intends to resell the Goods in any such country.
12. THIRD PARTIES.
12.1 It is the intention of the parties that no person not a party to the
agreement between the Seller and the Buyer shall have any rights in relation to
it under the Contracts (Rights of Third Parties) Act 1999.
13. GENERAL
13.1. The Seller is a member of the group of companies whose holding company is
Joseph Metcalf Limited and accordingly the Seller may perform any of its
obligations or exercise any of its rights hereunder by itself or through any
subsidiary or associate provided that any act or omission of any such subsidiary
or associate shall be deemed to be the act or omission of the Seller.
13.2. Any notice required or permitted to be given by either party to the other
under these Conditions 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.
13.3. 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.
13.4. If any provision of these Conditions is held by any competent authority to
be invalid or unenforceable in whole or in part the validity of the other
provisions of these Conditions and the remainder of the provision in question
shall not be affected thereby.
13.5. Any dispute arising under or in connection with these Conditions or the
sale of Goods shall be referred to a single Umpire appointed by agreement or (in
default) nominated on the application of either party following a notice to the
other requiring to concur in an appointment by the President for the time being
of the Lancashire Law Society and the decision of the Umpire howsoever appointed
shall be final and binding on the parties hereto. The Umpire shall act as an
expert and not as an arbitrator and the costs of the referral shall be paid in
accordance with the Umpire's instructions and in default in equal shares by the
parties.
13.6. The Contract shall be governed by the laws of England and the Buyer agrees
to submit to the non-exclusive jurisdiction of the English courts.
