1. FORMATION & AUTHORITY
(i) These terms and conditions of sale shall apply to all Quotations made and all Contracts for the sale of (“the Goods”) by Plasgran Limited (‘the Seller’). No alteration or qualification of these Conditions issued by the Buyer shall be effective unless expressly accepted in writing by the Seller. No-one has the Seller’s authority to vary, waive or modify these conditions or make any representation relating to the goods except a Director of the Seller acting in writing. Requests for a variation, waiver or modifications of these conditions or for any representation relating to the goods must be made in writing.
(ii) No binding contract shall be deemed to have been made until acceptance has been confirmed in writing by the Seller on its official Acceptance Form.
(i) Where the Seller has supplied to the Buyer a sample of the Goods and the Buyer accepts that sample then so long as the bulk supplied under this Contract materially corresponds with the sample any implied condition warranty or terms of the contract that the Goods are fit for the purpose for which they are required or are of merchantable quality shall be deemed to have complied with in every respect and no liability shall attach to the Seller in the respect thereof.
(ii) Unless otherwise agreed the Seller will charge at such rates as it may decide for all samples or other work produced at the Buyer’s request either experimentally or otherwise.
3. TRADE MARKS
The Seller gives no warranty or indemnity in respect of any actual or alleged infringement of patents, trade marks, trade names, registered designs, design copyright, licence or any other intellectual property right relating to the Goods all such matters being at the risk of the Buyer.
4. BUYER’S SPECIFICATION
Where the goods are processed and / or manufactured according to the Buyer’s own specification or sample the Buyer shall indemnify the Seller against any claims by any third party arising directly or indirectly out of the performance of this Contract including without prejudice to the foregoing any fines, impositions, and penalties incurred by or levied upon the Seller by reason of any act or default whatsoever by the Buyer or any person responsible to the Buyer.
(i) Where a period is named for delivery the Buyer must take delivery within that period failing which the Seller shall be entitled at its option to treat the Buyer as being in repudiation and may (without prejudice to its other rights) at any time thereafter terminate the Contract or any un-fulfilment part thereof or invoice the Buyer forthwith for Goods henceforth to be at the Buyers risk with the Buyer to be responsible for the cost of Storage from the time of attempted delivery to the date of payment.
(ii) Notwithstanding any delivery time or date stated the Seller shall not under any liability whatsoever if for any reason, all or any part of the goods are delivered beyond such time or date nor shall the Buyer under any circumstances have the right to refuse to take delivery of all or any part of the goods or to cancel this Contract or any part of it on account of delay in delivery or on account of any defect in the goods or of any departure from the specifications.
(iii) The Buyer must supply any specification due from him in sufficient time to enable the Seller to complete delivery within the period named.
(iv) The Buyer will return at his expense all pallets and hard delivery containers to the Sellers works or otherwise as the Seller may advise such items remaining at all times the property of the Seller which the Buyer will safeguard from delivery of the Goods to return to the Seller.
(v) Where Goods are sold F.O.B. the responsibility of the Seller shall cease immediately the Goods cross the Ship’s rail and the Seller shall be under no obligation to give the Buyer the notice specified in Section 32(3) of the Sale of Goods Act 1 975.
(i) Payment in full is due not later than the end of the month (except where specifically agreed in writing) next following the month of despatch and at the price as stated in the invoice which must be paid in full without set-off abatement discount or other reduction.
(ii) If the Buyer fails to pay the price in full by the due date the Seller shall be entitled to treat the Buyer as being in repudiation, and may (without prejudice to its other rights) at any time thereafter terminate this Contract or any unfulfilled part thereof.
(iii) All sums overdue shall bear interest at Two per cent (2%) per month compound.
7. MERCHANTABLE QUALITY AND FITNESS FOR PURPOSE
(i) The Buyer assumes entire responsibility for the goods being suitable for his or any particular purpose and no terms may be implied herein as to their suitability for any particular purpose.
(ii) ln the event of any goods not being of merchantable quality on leaving the Seller’s works the Seller will, at its option, either replace the same or give credit at invoice value if, (but only if) within a period of FOURTEEN DAYS from whichever is the later of the invoice date or the delivery date the Buyer shall have notified the Seller of the defects and (if the Seller accepts the defect) the goods in question are, with the previous written approval of the Seller, returned to the Sellers works by the Buyer (at the Seller’s cost or (at the Seller’s option) collected by the Seller. Beyond this the Seller accepts no liability whatsoever for any defects in the Goods rendering the same un-merchantable and (without limiting the foregoing) the Seller will in particular not in any circumstances be liable for any claim whatsoever for loss of profit, or arising out of or in connection with any loss of or injury or damage whether to person or to property and whether arising from defects, failure to comply with specification or otherwise howsoever.
(iii) Goods replaced or credited shall become the Seller’s property.
(iv) The terms of this clause are in lieu of all conditions, warranties or other terms as to descriptions, fitness for purposes, conditions, merchantability, quality or otherwise in respect of the goods whether expressed in the Contract or implied by common law, statute or custom and notwithstanding that such purposes may be, may have become or may have been known to the Seller.
8. CLAIMS FOR DAMAGE SHORTAGE OR LOSS IN TRANSIT
(i) The Buyer must carefully examine all goods on arrival. ln the event of any damage to the goods whilst in transit or any short delivery, the Carrier and the Seller must be notified in writing (other than on the Carrier’s own documents)within THREE DAYS and a written claim made within SEVEN DAYS. ln the event of non delivery the Carrier and the Seller must be notified in writing (other than on the Carrier’s own documents) within SEVEN DAYS of receipt of invoice and a written claim made within FOURTEEN DAYS. ln the event of a failure to comply with the above requirements, claims in respect of damage in transit, short-delivery or non-delivery will not be admitted by the Seller and in any event the Seller will never be liable to the Buyer in respect of such loss or damage beyond that amount which has been able to recover from its insurers, the Carrier or any other parties whomsoever.
(ii) Goods are not examined in the Carrier’s presence or before his departure from the place of delivery must be signed for or will be deemed to be signed for as ‘goods not examined’.
(iii) The Seller shall be entitled to deliver a quantity of goods which falls shod of the quantity ordered or which exceeds the quantity ordered by not more than ten per cent (l0%) and the Buyer shall accept all such Goods so delivered and the price shall be adjusted pro rata to take account of any such difference.
9. CANCELLATION BY SELLER
lf the Buyer shall make default in or commit a breach of this Contract or any other obligations to the Seller, or if any distress or execution shall be levied upon the Buyer’s property or assets, or if the Buyer shall make or offer to make any arrangement or composition with his creditors, or if the Buyer (being an individual) is made bankrupt, or is made subject to an administration or a receivership order, or if the Buyer shall be a limited Company and any resolution or petition to wind up such Company’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented, or if an administrator of all or any part of its undertaking, property or assets shall be appointed, the Seller shall have the right forthwith to determine any Contract then subsisting and, upon written notice of such determination being posted by it to the Buyer’s last known address, any sub-listing Contracts shall be deemed to have been determined without prejudice to any claim or right the Seller might otherwise make or exercise.
CANCELLATION BY BUYER
This Contract cannot be cancelled except with the written consent of the Seller and on terms which will indemnify the Seller against all loss and expenses.
11. RETENTION OF TITLE
(i) The risk in respect of any goods shall pass to the Buyer upon delivery but neither the legal, or the equitable ownership in the goods shall pass to the Buyer until he has paid the purchase price for such goods in full together with the full price of any other goods supplied being the subject of any other contract with the Seller, or, if earlier, when the Buyer resells the goods in the ordinary course of his business and in accordance with the provisions of this clause PROVIDED ALWAYS that if the Buyer resells the goods then the entire proceeds of sale will be held in Trust for the Seller and shall not be mingled with other monies or paid into any overdrawn bank account and shall at all times be identifiable as the Seller’s monies.
(ii) Until ownership of the goods passes to the Buyer the Buyer shall keep the goods as Bailee in a place and in such manner that they can clearly be identified as being the property of the Seller and the Buyer acknowledges that the Buyer holds them in fiduciary capacity for the sole benefit of the Seller.
(iii) ln the event of any default by the Buyer of any of these condition including failure to any to the Seller all monies owned on due date the Buyer’s right to resell goods belonging to the Seller shall forthwith cease and the entire sum of money remaining unpaid shall become immediately due and owing to the Seller, or if there should occur any of the events set out in Clause 9 hereof or the Buyer becomes otherwise incapable of trading for whatever reason, the Seller, shall be entitled forthwith to stop further delivery of Goods and to enter upon the premises of the Buyer with such transport as may be necessary to remove all property retained by the Seller under this Contract with the Buyer without prejudice to his right to claim such further monies as remain due and owing it, nor shall the Buyer be entitled to return the Goods or refuse to delay payment.
(iv) The right to recover Goods retained by the Buyer as set out in this clause shall include the right to remove those goods to which they may be attached whilst those other Goods still remain upon the premises of the Buyer.
(v) No privity of Contract shall exist or be created as between the Seller and any purchaser of Goods from the Buyer.
12. FORCE MAJEURE ETC
The Seller will be entitled in its discretion to vary or cancel this Contract without liability in the event of Act of God, war, strikes, lock-outs, flood, drought, tempest or any other cause beyond the control of the Seller or owing to any inability by the Seller to produce materials or any articles required for the performance of the Contract.
13. LEGAL CONSTRUCTION
(i) These Conditions and this Contract shall be subject to and in accordance with English Law.
(ii) Any legal proceedings against the Seller arising out or in connection with this Contract must be brought only in the Courts of England.
(iii) The headings of the Clauses in these Conditions shall not affect the construction of these Conditions.