E.H. BENNETT & COMPANY LIMITED
CONDITIONS OF SALE FOR ROADBORNE & RAILBORNE CARGOES
1. DEFINITIONS
"The Seller" means either E.H. Bennett & Company Limited or one of its associated companies
"The Buyer" means the Company or individual buying goods from the Seller.
"The Goods" means any goods sold by the Seller to the Buyer in accordance with these Conditions
"The Contract" means the Contract for sale and purchase of Goods whether covering one shipment, or several shipments.
"A consignment" means any one shipment where the Contract covers several shipments.
“Conditions” means the standard terms and conditions of sale set out in this document.
“Seller’s Sales Contract” means a formal written contract prepared by the Seller.
“Writing” includes letter facsimile or E-Mail transmission or other comparable means of communication.
2 THE CONTRACT
2.1 The terms of the Contract shall be those set out in the Sellers' Sales Contract (which also incorporates these Conditions) duly signed by the Buyer or where there is no such Sales Contract in accordance with any written quotation given by the Seller or any written order of the Buyer which is accepted in writing by the authorised representative of the Seller, subject in each case to these Conditions. These Conditions and the terms of the Seller’s Sales Contract 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 order is purported to be made, by the Buyer
2.2 Variations or alterations to the Contract terms or these Conditions can only be made with the agreement in writing of both Seller and Buyer.
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 and the Buyer acknowledges that it does not rely on, and waives any claim in respect of 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 is followed or acted upon entirely at the Buyer’s risk and it is for the Buyer to satisfy itself on all such matters and accordingly the Seller shall have no liability whatsoever to the Buyer for any loss or damage whatsoever which the Buyer may suffer arising out of or in connection with such advice or recommendation.
2.5 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) 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. PRICE OF GOODS
3.1 The price of the Goods shall be the price stated in the Seller’s Sales Contract or where there is no such Sales Contract 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 such lesser time as is stipulated in the quotation) or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer
3.2 Except where the Seller’s Sales Contract states to the contrary, the Seller reserves the right by giving notice to the Buyer at any time before delivery, 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 cost of labour, materials or other costs of manufacture) 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
3.3 Unless expressly stated or agreed otherwise, prices no not include value added tax, other taxes, import or export duties, or other impositions of any nature whatsoever. Any taxes, import or export duties or other impositions which the Seller may be required to pay under any existing or future laws upon or in respect of the sale, purchase, storage, delivery or transportation of the Goods shall be for the account of the Buyer. The Buyer shall pay the amount of such tax, duty or imposition to the Seller together with the price.
3.4 All prices shall be paid in the currency specified in the Contract.
4. WEIGHT AND QUALITY OF THE GOODS
4.1 The weights of all consignments shall be ascertained by or on behalf of the Seller and shall be notified to the Buyer on a delivery or advice note.
4.2 The weights so notified shall be conclusive unless any irregularity in the weighing or in the notification is proved.
4.3 The Buyer shall be entitled after giving the Seller reasonable notice to inspect the operation of the Seller’s weighing facilities at any reasonable time.
5. COMPOSITION, QUALITY OR CHARACTERISTICS
5.1 The Seller warrants that the Goods will at the time of delivery correspond to the description given by the Seller.
5.2 Except where the Buyer is dealing as a consumer (as defined by the Unfair Contract Terms Act 1977 Section 12) all representations and warranties, express or implied, statutory or otherwise, indicating quality or fitness for any purpose of Goods are expressly excluded.
5.3 Subject to sub-clause 5.4 the Seller shall not be liable to the Buyer (following re-sale of the Goods by the Buyer) for any claims arising from defects in the Goods whether in contract, tort, or under any statute providing that nothing in this condition shall affect the Seller's liability for death or personal injury arising from negligence.
5.4 The Buyer shall indemnify and keep indemnified the Seller against all liability (whether arising in contract, tort or by statute) in respect of any injury to or the death of any person, damage to any property moveable or immovable by reason of or arising directly or indirectly from a defect or defects in the Goods caused by the Buyer or from any materials included with the Goods on re-sale by the Buyer.
5.5 Any indication contained in any publicity material, or data sheets of the Seller or in correspondence between the Seller and the Buyer, whether direct or indirect, of typical composition, quality or any characteristics in relation to the performance of Goods to be supplied by the Seller relates to the average standard derived from samples taken and analyses made before the date of this contract. Reasonable variations in composition, quality, and other characteristics are to be expected in the Goods and shall not form the basis of any claim by the Buyer. Exceptional variations shall be dealt with by agreement (where possible) or failing that under Clause 11 of these Conditions.
6. PAYMENT
6.1 Payment shall be due in accordance with the following provisions:-
6.1.1 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.
6.1.2 The Buyer shall pay the price of the Goods on or before the 15th day of the month following the end of the month in which the Seller’s Invoice is dated, 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.
6.1.3 Special discount or rebate terms which may be agreed between the Seller and Buyer in Writing will only take effect if no other sums are due from the Buyer to the Seller at the time the discount or rebate is available to the Buyer.
6.2 If the Buyer fails to pay the price for any consignment when due, then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled:-
6.2.1 if the Goods were sold under a Contract for several consignments to suspend delivery of further consignments and/or cancel the Contract and;
6.2.2 to demand immediate payment of any amount invoiced but unpaid under any other Contract between the Seller and the Buyer (even if such amount is not yet due); and
6.2.3 appropriate any payment made by the Buyer to such of the Goods (or 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)
6.2.4. to charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 4% above Barclays Bank Plc Base Lending Rate from time to time until payment is made in full(a part of a month being treated as a full month for the purpose of calculating interest).
6.3 The Seller shall be entitled to charge the Buyer for all costs (including legal costs) incidental to the collection of any sums not yet paid.
6.4 The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or is alleged to have or for any reason whatsoever
7. TRANSPORT ARRANGEMENTS AND RISK
7.1 When the goods are despatched by rail, unless expressly agreed to the contrary in writing, delivery to the Buyer shall take place when the Goods are delivered to the rail operator for transmission to or to the order of the Buyer whether or not it pays the railway freight charges.
7.2 Where the Goods are collected by or on behalf of the Buyer for transmission by road, delivery to the Buyer shall take place when weighing has been completed and a weigh ticket has been issued by the Seller and signed by the person in charge of the vehicle. Where weighing is carried out by the Buyer at the request of the Seller delivery of the Goods shall be when the Goods are loaded onto the vehicle.
7.3 Where the Goods are delivered by road by or on behalf of the Seller, delivery of the Goods to the Buyer shall take place when the Goods are off-loaded or discharged from the vehicle at the Buyer’s premises or other specified delivery point.
7.4 The Goods shall be and thereafter remain at the Buyer’s risk from time of delivery.
7.5 Except where expressly agreed in Writing between the Seller and the Buyer, pallets are provided by the Seller solely for the purpose of transportation. All pallets must be returned or exchanged upon delivery or otherwise delivered to the Seller’s designated premises within 30 days. All pallets not so returned or exchanged will be charged to the Buyer at replacement cost.
8. INSURANCE
8.1 Where Goods are delivered by road by or on behalf of the Seller to the Buyer’s premises or some other specified delivery point the Seller shall make such insurance arrangements as it shall think fit and at its own expense
8.2 In all other cases the Buyer shall make its own insurance arrangement to cover transit risks.
9. DELIVERY OF GOODS
9.1 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay or delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
9.2 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.
9.3 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 then, without prejudice to any other right or remedy available to the Seller, the Buyer may:-
9.3.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
9.3.2 sell the Goods at the best price readily available 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.
10. RETENTION OF TITLE
10.1 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 purchase price for the Goods (including any interest payable under clause 6.2.4) and all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due
10.2 Until such time as the property in the Goods passes to the Buyer under 10.1 above, the Buyer shall hold the Goods to the Seller's order as 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. During such time, the Buyer shall still be entitled to re-sell or use the Goods in the ordinary course of its business
10.3 Until such time as the property in the Goods has passed to the Buyer (provided the Goods are still in existence and have not been re-sold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller's order and if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any Third Party where the Goods are stored and re-possess the Goods.
10.4 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so then 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
11. CLAIMS AND LIABILITIES
11.1 The Buyer shall inspect the Goods immediately upon delivery by the carrier.
11.2 The following Conditions shall apply to all claims by the Buyer against the Seller regarding the quality or quantity of the goods delivered to the Buyer (except where the Buyer seeks to reject the goods in their entirety in which case Clause 11.3 shall apply).
11.2.1 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 specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or delivery was not apparent on reasonable inspection) within a reasonable time 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 Goods and the Seller shall have no liability for any such defect or failure and the Buyer shall be bound to pay the price as if the Goods had been delivered.
11.2.2 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 is notified to the Seller in accordance with these conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge, or, at the seller’s sole discretion refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
11.3 When the Buyer seeks to reject the goods in their entirety on the grounds that they do not comply with the requirements of the Contract in terms of quantity, quality or description, the following procedure shall apply:-
11.3.1 The Seller has the option to require the Buyer to provide every assistance in mitigating the financial consequences of a rejection by the Buyer including (but not limited to) taking physical delivery of the goods and providing storage space and other reasonable facilities to enable the Seller to remedy a deficiency affecting the quality or description of the goods.
11.3.2 If the Buyer's rejection is on the basis of quantity, (whether excess or short) the Seller may nonetheless require the Buyer to purchase the goods at the same rate per ton as that laid down in the Contract, providing that the shortage or excess complained of is no more than 10% of the amount which the Buyer has contracted to buy.
11.3.3 If the Buyer's rejection is on the basis of quality or misdescription, the Seller shall be entitled to require the Buyer to purchase the Goods at the rate agreed in the Contract per ton providing that the Seller is able substantially to remedy the breach of description or breach of quality relied on by the Buyer.
11.3.4 The Seller agrees to bear the reasonable costs of the Buyer incurred in complying with 11.3.1. and will also bear its own costs and expenses in carrying out any necessary remedial work on the goods.
11.3.5 The exercise by the Seller of its rights under Clause 11 shall be without prejudice to the Seller's right to challenge the correctness of the Buyer's rejection. In the event of such a challenge, if the Seller succeeds, all costs and damages incurred by the Seller as a result of the wrongful rejection (including costs and expenses under 11.3.1 & 3 above) shall be paid by the Buyer. If the Buyer succeeds in justifying the rejection, the Seller shall remain responsible for costs and expenses as set out in 11.3.1 & 3.
11.4 The Seller shall have no liability for indirect or consequential losses sustained by the Buyer or any costs or expenses associated therewith arising out of or in connection with the performance of the Contract.
11.5 No breach by the Seller of its obligations in relation to any individual consignment or consignments shall entitle the Buyer to treat the Contract of which the consignments form part as repudiated. For the purpose of this Clause only, each consignment shall be treated as if it were the subject of a separate Contract.
12. TERMINATION
12.1 The Seller shall be entitled to terminate the Contract forthwith without notice or (in its absolute discretion) to suspend the shipment of further consignments under the Contract without liability to the Buyer in the cases set out in 12.2 below.
12.2 The Seller's right of termination and/or suspension arises in the following cases:-
12.2.1 If the Buyer makes any proposal for a voluntary arrangement or enters into a composition with its creditors or
12.2.2 If a petition is presented for an administration order to be made in respect of the Buyer or
12.2.3 If a petition is presented for the winding up of the Buyer a meeting of creditors is called for the Buyer to be placed into voluntary liquidation or a resolution is passed for the Buyer to go into liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction) or;
12.2.4 If (being an individual) has a bankruptcy order made against him or
12.2.5 If an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer, or;
12.2.6 If the Buyer becomes insolvent or any insolvency procedure is commenced in any jurisdiction or
12.2.7 the Buyer ceases to carry on business.
12.3 If the Seller reasonably believes that any of the events mentioned above is about to occur, the Seller shall be entitled to notify the Buyer of the Seller's concern by fax and if the Buyer fails to provide the Seller with convincing evidence that the event in question will not occur, the Seller is entitled to proceed under this Condition as if the event in question had occurred.
12.4 If the Seller exercises its rights to terminate in circumstances where Goods have been delivered to the Buyer but not paid for, the price for such Goods shall forthwith become due and payable regardless of any prior agreement to the contrary.
13. FORCE MAJEURE
13.1 In this Clause, the events or circumstances constituting "Force Majeure" are as follows:-
Strikes, lock-outs, labour disputes, sabotage, storm, floods and other natural phenomena, explosion, accidents, fire, war or acts of war whether declared or not, civil commotion, riot, insurrection, epidemic, quarantine, sickness of personnel, embargo,
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