Osborn-Unipol (UK) Limited
Terms & Conditions of Business (Sale)
1. In these terms and conditions:-
(a) “the Seller” shall mean Osborn-Unipol (UK) Limited
(b) “the Customer” shall mean the party with whom the Seller deals either by quotation, or contract, or both
(c) “Products” means any item of whatsoever nature to be sold by the Seller to the Customer
Seller Conditions to Prevail
Unless otherwise agreed in writing by the Seller these terms and conditions shall override any previous terms and conditions of the Seller or any conditions appearing in the Seller’s catalogues or elsewhere or any conditions stipulated incorporated or referred to by the customer whether in the order or in any negotiations preceeding the formation of the contract and in the event of the customer’s conditions containing a clause inconsistent with or purporting to exclude the Seller’s conditions or purporting to provide that delivery of any goods or the commencement of any work by the Seller on a contract for the customer shall constitute acceptance of the customer’s conditions such clause or clauses shall be of no effect and the Seller’s terms and conditions shall prevail.
1. Any quotation submitted by the Seller shall be subject to the terms and conditions of the Seller and the liability of the Seller shall not exceed that contained in these terms and conditions in respect of any such quotation or any subsequent or other contract.
2. Each contract shall be deemed to have been entered into by the customer in reliance only upon its own judgement and deliberations and the Seller does not hold itself as advising or any of its employees or agents as having authority to advise the customer on the terms and conditions thereof or on any other matters connected with contracts between the Seller and the customer and the Seller shall be under no liability in respect of any advice which is given or views it has expressed whether or not such advice is given or such view is expressed at the request of any of its customers.
3. The Seller reserves the right to cancel or withdraw any quotation without notice at any time without acceptance and quotations not accepted within 30 days shall be deemed to be withdrawn unless confirmed by the Seller in writing. In all cases the Seller reserves the right to vary all quoted prices at any time if between the date of quotation or confirmation and the dates of delivery for despatch by the Seller variations shall occur in the costs incurred to the Seller in the purchase or production of the products the subject of the contract.
4. Quotations issued by the Seller does not constitute an offer to supply products and any order placed by the customer following a quotation issued by the Seller shall not be binding on the Seller unless and until accepted by the Seller in writing.
5. Any quotation given by the Seller in respect of the specified quantity of products shall be exclusive to that particular quantity and shall not bind the Seller in respect of quotations or contracts in respect of other quantities.
1. All orders are accepted and quotations made on the basis that materials and products will be charged at the prices prevailing at the date of despatch from the Seller’s works and the Seller shall be at liberty to increase the price from the quotation price by notification to the buyer prior to the despatch date.
2. The Seller shall have the right to revise or vary at its absolute discretion the price and any contractual delivery date if there shall be any alteration by the customer in the specification or quantity of the product or any other aspect of the contract.
3. All prices quoted and set out in any written acknowledgement of order are quoted exclusive of any packaging and carriage charges, installation charges, VAT or any other tax duty or levy which shall be due or payable unless otherwise specified by the Seller.
1. The Seller may before executing any order require the customers to prove to the satisfaction of the Seller that it will fulfil all its obligations and make payments on the due date or dates. The Seller reserves the right to rescind the contract forthwith and without notice and without liability of any kind if it is not so satisfied but without prejudice to any claim which it may have against the customer save that the Seller shall have the right to require payment for products or services if the customer is unable to satisfy the Seller as above.
2. Unless otherwise specified by the Seller payment for all products shall be made on or before delivery of the products.
3. Where the Seller permits the customer to have an account and grants credit to that customer then all payments shall be due 30 days from the date of invoice except where alternative terms were put in writing.
4. If the price of the product or any part thereof remains unpaid after the date when the same has become due the amount unpaid shall bear a surcharge at the rate of 2.5% or such other rate as the Seller may hereafter stipulate by written notice to the customer for each month or part of the month during which the same remains
unpaid from the date of default up to the date of actual payment as well after as before any judgement.
Ownership and Risk
1. Any products sent or held abroad by the Seller at the customer’s request shall be at the sole risk of the customer and customer shall fully indemnify the Seller in all respects in connection therewith and in the case of products to be delivered within the United Kingdom the risk in such products shall pass to the customer upon delivery.
2. All products delivered by the Seller to or to the order of the customer shall remain the property of the Seller until all sums due to the Seller from the customer whether or not in respect of such products have been paid in full.
3. The customer shall be entitled to sell such products in the ordinary course of his business but not as agent for or otherwise on behalf of the Seller and shall keep the Seller fully indemnified in all respects in relation to such sales and products. In the event of his doing so the customer shall hold upon trust for the Seller such proceeds or sale as may be required to satisfy all sums due to the seller as aforesaid together with any interest payable thereon and shall immediately pay such sums to the Seller and the provisions of this clause shall continue to apply not withstanding that the products may have been used in the manufacture of any article or may have become mixed with other material of any nature.
4. Upon the accounts of any of the events specified in condition the customers aforesaid right to sell the products which remained the property of the Seller hereunder shall thereupon cease and the Seller shall be entitled to immediate possession of all products remaining in the custody or under the control of the customer or any other party which have not been used in the manufacture of any article and have not become mixed with any other material or are still identifiable as the products of the Seller the customer shall hold such goods at the disposal of the Seller who shall be entitled to enter upon any land or premises of the customer for the purposes of recovering the same and until the ownership thereof has passed to the customer all such goods in the customer’s possession or under his control shall be so marked or labelled by the customer as to be readily identifiable as the property of the Seller and the customer shall make every effort to secure the title of the Seller thereto.
5. Unless otherwise agreed in writing by the Seller, the Seller shall be under no liability whatsoever for any injury loss or damage resulting from the handling or use of the produce whether any carriage insurance and freight charges are to be paid by the customer or the Seller from the time the products leave the Seller’s premises and the customer shall ensure that all necessary insurances are effective and shall indemnify the Seller in respect of any claims made against it.
Loss and Damage in Transit
1. The Seller shall not be liable for any loss of or damage to or delay or detention of the goods in the course of transit or permit delivery or short delivery unless the customer gives to the Seller and to the carrier if a different person within 48 hours of receipt of the products a written notice of the customer’s complaint and in the case of non delivery or non arrival of the whole of any consignment or product or of any separate package unless the customer shall give to the Seller and to the carrier a written notice thereof within 14 days of the date of notification of despatch of the product.
2. In the event that the goods are to be collected by the customer from the Seller’s premises the risk therein shall pass to the customer whether they are loaded onto the customer’s vehicle or onto the vehicle office carrier or other agent.
1. The Seller shall not be liable for any damage or loss arising directly or indirectly from any delay in delivery of the products to the customer or to a third party whether such a delay in delivery is caused by the default of the Seller.
2. If for any reason the customer is unable to accept delivery of the goods at the time that the goods are due and ready for delivery the Seller shall at its discretion store the goods and the customer shall be liable to the Seller for the Seller’s reasonable costs of storing goods including all insurances on the goods and this shall be without prejudice to all other remedies which the Seller may have against the customer.
1. If any defect is discovered in the product supplied by the Seller and it is admitted by the Seller to be due solely to defective material or workmanship then the Seller will at its own option either repair or replace the defective product, or any part or parts thereof free of charge or the Seller may at its absolute discretion refund the invoice price of the defective product.
2. The before going warranty shall only apply:-
(a) If the customer gives written notice to the Seller of the alleged defects within 30 days of the time of delivery specifying the nature of the defect in the product or part or parts thereof.
(b) If the products have been stored and maintained properly and carefully and in accordance with any instructions of the Seller.
(c) If the Seller is allowed reasonable opportunity to inspect the products at the Purchaser’s premises or other location of the Seller’s choosing and the Seller shall
not be obliged to accept return of any products until such inspection shall have taken place.
(d) Return of Goods to the Seller in all other circumstances will not be accepted and such goods will remain at the Purchaser’s risk.
3. The above warranties are given by the Seller and accepted by the customer in substitution of any rights which the customer may otherwise have against the Seller either by virtue of any express or implied representation condition or warranty statutory or otherwise as to the state quality fitness or performance of the goods or the standard of the Seller’s workmanship and the state quality thickness or performance of any material supplied in connection therewith and all such representations conditions and warranties are herby expressly excluded the above warranties are also accepted by the customer in substitution for any right which the customer may otherwise have against the Seller in negligence or otherwise in tort arising out of or in connection with the supply of any products or materials or to the order of the customer or the execution of any work for the customer and all such liability however arising is hereby expressly excluded provided that nothing in this condition shall excuse the Seller from any liability which it may incur or death or personal liability for death or personal injury the Seller shall not be liable in any manner whatsoever whether in contract tort misrepresentation or otherwise for any indirect or consequential loss damage or injury howsoever caused which may arise out of or in connection with the supply of products to or to the order of the customer or the execution of work for the customer.
1. If in respect of any contract with the Seller the customer fails to pay any purchase price on or by the due date or fails to deliver or take delivery on or by the due date or makes default in or commits a breach of the terms and conditions of the contract then all costs of manufacture work or other expenses whatsoever incurred by the Seller in the performance of its obligations under the contract shall be considered a debt due by the customer to the Seller.
2. If the customer commits any act of bankruptcy or an order shall be made for the winding up of the customer or a meeting shall be convened for the purpose of considering a resolution that the customer shall be wound up or the customer shall convene a meeting for the purpose of making or proposing or entering to any arrangement or composition for the benefit of his creditors or a customer shall stop any payment or cease or threaten to cease to carry on its business or dispose or threaten to dispose of its undertaking or assets or become unable to pay its debts then the Seller shall have the right without notice to the customer and without prejudice to any other claims which it may have to determine all or any of its contracts and/or accounts still outstanding with the customer and any sums in respect of such contracts or accounts shall immediately become due and payable.
1. The customer shall indemnify the Seller against all claims costs and expenses made against or incurred by the Seller as a result of work done in accordance with the customer’s specification or instructions which involves the infringement of any letters patents trade mark or registered design or which constitutes the tort of passing off. The Seller shall have a general lien over all goods and property of the customer in the possession of the Seller for all unpaid debts due from the customer.
2. The Seller shall be relived from all or any of its obligations under the contract to the extent that the performance of such obligations is prevented frustrated impeded or delayed in consequence of any statute regulation or order of any Government or other authority or any strike knock out or trade dispute whether involving the Seller’s employees or those of other parties or any other cause whether or not of a like or similar nature beyond the Seller’s control.
3. Notwithstanding that sample products may be exhibited to and inspected by the customer such sample products are so exhibited and inspected solely to enable the customer to judge for himself the quality of the bulk and not as constitute a sale by samples. The customer shall take the product at his own risk as to there corresponding with the said samples and subject to the normal variation between bulk and samples accepted by the trade.
4. The Seller shall be deemed to have fulfilled the contract by delivering within 10% or 250 kilos whichever is the greater of the quantity ordered and the customer shall pay the contract rate for the quantity ordered and the customer shall pay the contract rate for the quantity actually delivered.
5. Neither the failure of the Seller to deliver any one or more of the instalments of the products at the time provided for delivery thereof nor any claim by the customer in respect of any instalments shall entitle the customer to treat this contract as repudiated.
6. The Seller reserves the right to sub contract the whole or any part of the order at his absolute discretion.
7. No cancellation of any order shall be accepted nor may these terms of business be varied in any circumstances without the prior consent of the Seller in writing.
8. Any notice to be given by either the customer or the Seller shall be sufficiently given if sent by first class post or facsimile transmission addressed to the place of business of the party to whom it is addressed and such notice shall be deemed to be received in the case of postage two days after it was posted and in the case of facsimile transmission on the date of despatch.
9. The customer will on or before delivery of the goods if so requested by the Seller enter into a written undertaking to take such steps as may be specified to the customer by the Seller and set out in such undertaking relating to the safe and proper use of the goods without risk to health.
10. The customer shall indemnify the Seller in respect of any liability monetary penalty or fine in respect of or in connection with the goods incurred by the Seller under The Health and Safety At Work Act 1974 or any statutory modification or re-enactment thereof or any regulations orders or directions made thereunder.
11. These conditions and all contracts between the Seller and the customer shall be governed by and construed in accordance with English Law.