KB.Pallets Terms and Conditions
1.1 In these Conditions:
" Buyer" means the person who accepts a quotation of the seller for the sale of the goods or whose order for the goods is accepted by the seller.
"Goods" means the goods (including any installment of the goods or any parts for them) which the seller is to supply in accordance with these Conditions.
"Seller" means KB Pallets Ltd.
"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 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.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of The Sale
2.1 The seller shall sell and the buyer shall purchase the goods in accordance with any quotation of the seller which is accepted by the buyer or any order of the buyer which is accepted by the seller, subject in either case 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.
2.3 The sellers 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 for breach 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 which is not confirmed in writing by the seller is followed or acted upon entirely at the buyers 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 other document or information issued by the seller shall be subject to correction without any liability of the part of the seller.
3. Orders and Specifications
3.1 No order submitted by the buyer shall be deemed to be accepted by the seller unless and until confirmed by the sellers authorised representative.
3.2 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.
3.3 The quantity quality and description of any specification for the goods shall be those set out in the sellers quotation (if accepted by the buyer) or the buyers order (if accepted by the seller).
3.4 If the goods are to be manufactured or any process is to be applied to the goods by the seller in accordance with the specifications submitted by 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 trademark or other industrial or intellectual property rights or any other person which results from the sellers use of the buyers specification.
3.5 The seller reserves the right to make any changes in the specification of the goods which are required to conform with any applicable safety or other statutory requirements or, where the goods are to be supplied to the sellers specification, which do not materially affect their quality or performance.
3.6 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.
4. Price of The Goods
4.1 The price of the goods shall be the sellers quoted price or where no price has been quoted (or a quoted price is no longer valid) the price listed in the sellers published price list current at the date of acceptance of the order. Where the goods are supplied for export from the United Kingdom the sellers published export price list shall apply. All prices quoted are valid for 7 days only or until earlier acceptance by the buyer after which time they may be altered by the seller without giving notice to the buyer.
4.2 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 costs of labour materials or other costs of manufacture) any 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.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the seller and unless otherwise agreed between the buyer and the seller all prices are given by the seller on an ex works basis and where the seller agrees to deliver the goods otherwise than at the sellers premises the buyer shall be liable to pay the sellers charges for transport packaging and insurance.
4.4 The price is exclusive of any applicable value added tax which the buyer shall be additionally liable to pay the seller.
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 are to be collected by the buyer of 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 The buyer shall pay the price of the goods within 30 days of the date of the sellers invoice 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. Receipts for payment will be issued only on 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 made by the buyer to such of the goods (or the goods supplied under any 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 two per cent per month until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6.1 Delivery of the goods shall be made by the buyer collecting the goods at the sellers premises at any time after the seller has notified the buyer that the goods are ready for collection or, if some other place for delivery is agreed by the seller, by the seller delivering the goods to that place.
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. The goods may be delivered by the seller in advance of the quoted delivery date upon giving reasonable notice to the buyer.
6.3 Where the goods are to be delivered in installments each delivery shall constitute a separate contract and failure by the seller to deliver any one or more of the installments in accordance with these Conditions or any claim by the buyer in respect of any one or more installments 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 sellers reasonable control or the buyers fault and the seller is accordingly liable to the buyer the sellers 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 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 buyers reasonable control or by any reason of the sellers 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) of storage; or
6.5.2 Sell the goods 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.
7. Risk and Property
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 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 sellers promises 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 delivery and the passing of risk in the goods or any other provision of these Conditions the 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 price of the goods and all other goods agreed to be sold by the seller to the buyer for which payment is then due.
7.3 Until such time as the property and the goods passes to the buyer the buyer shall hold the goods as the sellers fiduciary agent and bailee and shall keep the goods separate from those of the buyer and third parties and property stored protected and insured and identified as the sellers property. Until that time the buyer shall be entitled to re-sell or use the goods in the ordinary course of its business but shall account to the seller for the proceeds of sale or otherwise of the goods whether tangible or intangible including insurance proceeds and shall keep all such proceeds separate from any moneys or property of the buyer and third parties and in the case of the tangible proceeds, properly stored protected and insured.
7.4 Until such time as the property in the goods passes to the buyer (and 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 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.
7.5 The buyer shall not be entitle 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 all moneys owing by the buyer to the seller shall (without prejudice to any other right or remedy of the seller) forthwith become due and payable.
8. Warranties and Liability
8.1 Subject to the Conditions set out below the seller warrants that finished goods manufactured by the seller will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of one month from the date of their initial use or one month 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 sellers instructions (whether oral or in writing) misuse or alteration or repair of the goods without the sellers 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.
9.1 If any claim is made against the buyer that the goods infringe or that their use or re-sale infringes the patent copyright design trade mark or other industrial or intellectual property rights of any other person the seller shall indemnify the buyer against all loss damages costs and expenses awarded against or incurred by the buyer in connection with the claim or be paid or 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 a final award the buyer shall not pay or accept any such claim or compromise any such proceeding without the consent of the seller (which shall not be
9.1.4 The buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover 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 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 or 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 trade terms of the International Chamber of Commerce as in force at the date when the contract is made. Unless the on 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 or regulations governing the importation of the goods into the Country of destination and for the payment of any duties thereon.
11.4 Unless otherwise agreed in writing between the buyer and the seller the goods shall be delivered F.O.B. the air or sea port of shipment and the seller shall be under no obligation to give notice under Section 32 (3) of the Sale of Goods Act 1979.
11.5 The buyer shall be responsible for arranging for testing and inspection of the goods at the sellers 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 Payment of all amounts due to the seller be made by irrevocable letter of credit opened by the buyer in favour of the seller and confirmed by a Bank acceptable to the seller or if the seller has agreed in writing on or before acceptance of the buyers order to waive this requirement by acceptance by the buyer and delivery to the seller of a bill of exchange drawn on the buyer payable 60 days after sight to the order of the seller at such branch of National Westminster Bank plc in England as may be specified in the bill of exchange.
12.1 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.
12.2 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.
12.3 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.
12.4 The construction validity and performance of any contract entered into on these Conditions shall be governed by the Laws of England.