In these conditions "the Company" means Pro-term, "the Buyer" means the person with whom the contract is made, and "the goods" means the product sold by the Company to the Buyer pursuant to the contract of which these terms and conditions form part ("the Contract").
1. These Conditions shall apply to the Contract to the exclusion of any other terms and conditions contained or referred to in any order, letter, form of contract or other communication sent by the Buyer to the Company and the provisions of these conditions shall prevail unless expressly varied in writing and signed by a director on the Company's behalf.
2. Any concession made or latitude allowed by the Company to the Buyer shall not affect the strict rights of the Company under the Contract.
3. If in any particular case any of these Conditions shall be or be held to be invalid or shall not apply to the Contract the other conditions shall continue in full force and effect.
Unless otherwise agreed the price payable by the Buyer for each delivery of the goods shall be the Manufacturers' ruling price as published in their current price list prior to the date of despatch. The Prices quoted for Export are "ex-works", unpacked and are exclusive of V.A.T.
The Company reserves the right to vary these prices from time to time and without notice and although the Company normally makes every effort to notify its customers of these price changes, it is nevertheless the duty of the Buyer if unsure of the current price of any particular goods to ascertain from the Company the exact price of the goods. In the event of the Company submitting a written quotation for the supply of goods, the prices therein stated are effective if an acceptance in writing is received within 28 days of the date of the quotation. The Company reserves the right to alter the price in the quotation if the Buyer does not accept delivery of the goods within the time limit laid down in the quotation.
Notwithstanding that the Company may have given a detailed quotation no order shall be binding on the Company unless and until it has been accepted in writing by the Company.
TERMS OF PAYMENT
Where no other terms of payment are specified the Company's terms of payment are:
1. Finished products will be sold on a proforma invoice basis or on settlement terms otherwise agreed in writing between the Company and the Buyer.
2. Any other sales of goods will be on their credit, payment being on a net monthly basis following the month of delivery or cash sale basis. No discount for early payments will be granted.
3. Without prejudice of any other rights it may have the Company is entitled (both before and after any judgement), to charge interest at a rate equal to the higher of the interest rate payable on court judgements or 2% above the base rate from time to time of Barclays Bank Plc on overdue payments of the price of the goods or the price of any instalments thereof.
4. The Buyer shall not be entitled to withhold payment of any amount payable under the Contract to the Company because of any disputed claim (the claimant may be an associated Company) in respect of faulty goods or any other alleged breach of Contract, nor shall the Buyer be entitled to set-off against any amount payable under the Contract to the Company any monies which are not then presently payable by the Company or for which the Company disputes liability.
5. Payment shall be due forthwith upon the occurrence of any of the events referred to in Condition 18 below.
6. In the event of a company failing to honour its payments to Pro-term, the Directors of that company will be held personally responsible for the debt.
Without prejudice to Conditions 6 hereof, the Buyer shall have no right in any circumstances to cancel the Contract without the Company's prior written consent and if such written consent is given it may be given on such terms and conditions as may be imposed by the Company, including a condition relating to the payment by the Buyer of adequate compensation.
The Buyer shall indemnify the Company in respect of any loss, cost or expense incurred by the Company as a result, directly or indirectly, of the Buyer's instructions or lack of instructions or through any failure or delay whatsoever in taking delivery or through any other act, neglect or default on the part of the Buyer, its servants, agents or employees.
The Buyer shall indemnify the Company against all costs, claims, losses, expenses and damages incurred by the Company or for which the Company may be liable due to or arising directly or indirectly out of any infringement or alleged infringement of patents, trade marks, copyright, design right or other intellectual property right occasioned by the importation, manufacture or sale of the goods it made to the specification or special requirements of the Buyer.
The rights of the Company or the Buyer shall not be prejudiced or restricted by any indulgence or forebearance extended by either party to the other and no waiver by the Company in respect of any breach by the Buyer shall operate as a waiver in respect of any subsequent breach.
The Contract shall in all respects be construed and operate as a contract made in England subject to English Law and the Buyer and the Company agree to submit to the non-exclusive jurisdiction of the English courts.
PASSING OF TITLE AND RISK
1. From the time immediately prior to loading before despatch the goods shall be at the Buyer's risk who shall be solely responsible for their custody and maintenance but, unless otherwise expressly agreed in writing, the goods shall remain the Company's property until all payments to be made by the Buyer under the Contract and any other contract between the Company and the Buyer and on any other account whatsoever have been made in full and unconditionally. Whilst the Company's ownership continues the Buyer shall keep the goods labelled as belonging to the Company and separate and identifiable from all other goods in its possession as bailee for the Company.
2. The Buyer may only re-sell the goods to the Buyer's customers in the ordinary course of the Buyers business as a fiduciary and trustee for the Company. In the event of any resale by the Buyer of the goods the Company's beneficial entitlement shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefore shall be assigned to the Company and until such assignment shall be held on trust in a separate identified account for the Company by the Buyer and such proceeds shall not be mingled with other moneys or paid into any overdrawn bank account and shall at all times be identifiable as the Company's moneys.
3. Without prejudice to the equitable rules as to tracing, in the event of failure to pay the price in accordance with the Contract the Company shall have power to re-sell the goods, such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise and for such purpose the Company and its servants and agents may forthwith enter upon any premises or land occupied or owned by the Buyer to remove the goods.
4. Pending payment of the full purchase price of the goods the Buyer shall at all times keep the goods comprehensively insured against loss or damage by accident, fire, theft and other risks usually covered by insurance in the type of business carried on by the Buyer in an amount at least equal to the balance of the price for the same from time to time remaining outstanding. The policy shall bear an endorsement recording the Company's interest.
5. Consignment stock will remain the property of the Company at all times and will be held by the Buyer under Clause 15(a) above. When consignment stock is invoiced to the customer, normal trading terms and conditions will apply.
MINIMUM ORDER CHARGE
The Company reserves the right to make a minimum order charge of £10 or such greater amount as it shall from time to time determine on all orders for goods. This charge will be calculated before trade terms, carriage and packing and V.A.T.
LIMITATION OF LIABILITY
1. Where under the Unfair Contracts Terms Act of 1977 the test or reasonableness and its application to any terms and conditions hereof, the Buyer shall be deemed to have accepted the terms and conditions hereof as being reasonable at the time at which the contract was concluded.
2. Whilst every effort is made to ensure that descriptions, drawings and other information and correspondence, catalogues etc. are accurate no warranty is given in respect thereof and the Company shall not be liable for any error therein and shall not be liable for damages for misrepresentation, whether made orally or in writing. Further, the Company reserves the right to modify the design and specification of goods manufactured by the Company at any time without notice but not so that the Buyer shall be obliged to accept something fundamentally different from what he has ordered.
3. If at any time any Court shall consider that any of the terms and conditions hereof are not reasonable then in that event the Company's liability hereunder shall be made limited to the value of the goods in question in respect of each and every claim save that where the Buyer makes more than one claim in respect of one incident or of the goods comprised in any one order, the Company's liability in respect of those claims shall not be limited in any event.
4. Nothing in these conditions shall be intended to exclude or restrict the Company's liability for death or personal injury where such exclusion, or restriction of liability is prohibited by the Unfair Contracts Terms Act 1977.
TERMINATION OR SUSPENSION OF CONTRACT
The Company shall be entitled, without prejudice to its other rights and remedies to terminate wholly or in part the Contract and any or every contract between itself and the Buyer or to suspend delivery or any further deliveries under the Contract (without prejudice to the Company's right subsequently to determine the Contract and any or every other such Contract for the same cause should it so decide) in any of the following events:
1. If a debt is due and payable by the Buyer to the Company but is unpaid.
2. If the Buyer has failed to provide the Company with an acceptable letter of credit, bill of exchange or any other security as required by the Contract.
3. If the Buyer has failed to take delivery of any goods under any contract between them and the Company otherwise than in accordance with the Buyer's actual rights.
4. If the Buyer becomes insolvent or being a body corporate has passed a resolution for voluntary winding up except where solely for the purpose of reconstruction or has suffered an Order of the Court for its winding up to be made or has had a Receiver appointed or being an individual or partnership has suspended payment of his or their debts in whole or in part or have proposed or entered into any composition or arrangement with his or their creditors or has had a Receiving Order in Bankruptcy made against him or them.
The Company shall be entitled to exercise its aforesaid rights of termination or suspension at any time during, which the event of default giving rise thereto has not ceased or been remedied and in the event of any such suspension the Company shall be entitled as a condition of resuming delivery under any contract between it and the Buyer to require payment of or such security as it may require for the payment of the price of any further delivery.