CONDITIONS
OF SALE
1. Definitions In these Conditions of Sale
"the Seller"
means T. Crossling & Co. Limited or Crossling Limited
or Crossling CBM Limited or Northern Tools & Accessories
"Order"
means any order placed by the Buyer;
"Quotation"
means any quotation or terms given by the Seller. All such quotations
or terms shall be deemed to incorporate these Conditions which shall
be deemed to have been accepted by the Buyer as governing all agreements
from time to time entered into between the Seller and the Buyer
which provides for the sale of any goods by the Seller to the Buyer
and the performance of any services by the Seller for the Buyer;
"the Buyer"
means the person firm or company named as the Buyer in an Order;
"the Goods"
means the goods which are the subject of an Order;
"the Services"
means any services which are the subject of an Order; and
"the Agreement for Sale"
means the agreements, warranties, conditions, representations and
other terms set out in these conditions.
2. The Agreement
2.1 These Conditions shall be deemed to be incorporated in all agreements
from time to time entered into between the Seller and the Buyer
which provide for the sale of any goods and the performance of any
services by the Seller to the Buyer. Acceptance of the Goods by
the Buyer shall be conclusive evidence before any court of law or
arbitrator that these conditions apply.
2.2 The Agreement for Sale represents the complete agreement between
the Seller and the Buyer with regard to the Goods and Services and
contains all agreements, warranties, conditions, representations
and other terms agreed, made or relied upon by either party in connection
with the Goods and Services. No amendment or addition to the Agreement
for Sale shall be binding on the Seller unless agreed in writing
by the Seller.
2.3 The Seller's catalogues, price lists and quotations do not constitute
offers made by the Seller and consequently any Order of the Buyer
shall constitute an offer only and shall be subject to acceptance
by the Seller. No offer, obligation or agreement relating to the
sale of Goods and Services is binding on the Seller unless set out
in the Agreement for Sale or an amendment or addition thereto duly
agreed in writing by the Seller.
2.4 Every Order must specify its date, a reference and, where applicable,
an address for delivery.
3. Prices
3.1 The prices for the Goods and Services exclusive of V.A.T. shall
be as given in the Quotation, except as otherwise provided for herein.
3.2 The Seller reserves the right to increase the price of the Goods
and Services if on or before the despatch date there is either any
increase in the Seller's general price list in respect of the same
or similar descriptions of Goods or any increase in the Seller's
costs of new materials, labour or services or any currency fluctuations
affecting the cost of the Goods.
3.3 The Seller reserves the right to make additional charges in
respect of: (a) the costs of carriage, storage, insurance or other
charges or (b) any other matter incurred by the Seller in accordance
with the Buyer's Order or otherwise at the Buyer's direction.
4. Payment Terms
4.1 Except as otherwise specified in the Quotation or this Condition
payment for the Goods and Services shall be due in full in pounds
sterling at the latest within thirty days of the end of the month
in which the Goods are delivered or collected.
4.2 Time for payment shall be of the essence.
4.3 In the event of any payments becoming overdue the Seller shall
be entitled to charge interest at the rate of two and a half per
cent per annum above the base rate from time to time of Lloyds Bank
Plc accruing daily.
4.4 In
the event of any payments not being made when due or if the Seller
at its discretion at any time considers the financial circumstances
of the Buyer have ceased to justify the terms allowed, the Seller
reserves the right to suspend further work and deliveries to cancel
allowance of further credit to demand security for payment before
continuing work on or delivering any Goods or performing any Services
and to appropriate any payment made by the Buyer to such of the
Goods (or the 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.
4.5 Until payments due from the Buyer to the Seller for the Goods
and Services are made, the Seller shall have a general lien in respect
of all property of the Buyer in the Seller's possession.
4.6 The Buyer shall not be entitled to withhold payment from the
Seller in respect of any sums for any Goods or Services for which
payment shall be due notwithstanding any claims (howsoever and whensoever
arising) by the Buyer against the Seller.
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5.
Delivery and Risk
Signature by the Buyer or the Buyer's representative or the Seller's
delivery documentation shall constitute delivery thereof to the Buyer,
and thereafter, such Goods shall be at the Buyer's risk.
5.2 Any period or date for delivery stated in the Agreement for Sale
or elsewhere is the Seller's estimate when stated but is not a contractual
commitment. Time for delivery shall not be of the essence.
5.3 The Seller may make delivery by instalments. Goods included in
each delivery or part delivery shall be deemed to be sold under a
separate contract. Neither failure on the Seller's part to make any
delivery or part delivery in accordance with the Agreement for Sale
nor any claim by the Buyer in respect of such delivery or part delivery
shall entitle the Buyer to reject the balance of the Goods agreed
to be purchased by the Buyer. For the avoidance of doubt no cancellation
of an Order or part of an Order shall be permitted for whatever reason
without the express written consent of a duly authorised representative
of the Seller.
5.4 The Seller reserves the right to despatch and bill for a quantity
of Goods reasonably greater or reasonably less than the exact quantity.
5.5 In respect of sales in which delivery is made by the Seller or
the Seller's carrier the Seller shall repair or replace free of charge
any Goods proved to the Seller's satisfaction to have been lost or
damaged in transit provided that both the Seller and the Seller's
carrier (if any) receive written notification of damage within three
working days of delivery or of loss in transit within five working
days from date of despatch. After such period, the Seller shall not
be liable in respect of any such loss or damage.
5.6 Goods may not be returned without the Seller's written agreement.
Goods so returned must be consigned carriage paid by the Buyer and
accompanied by a packing note stating the Seller's delivery note number.
In some instances a restocking charge may be made to the Buyer. Any
further terms to which the return of the Goods shall be subject shall
be within the absolute discretion of the Seller.
6. Passing of Property
6.1 The Buyer acknowledges that before entering into the agreement
for sale he has expressly represented and warranted that he is not
insolvent and has not committed any act of bankruptcy, or being a
company with limited or unlimited liability, knows of no circumstances
which would entitle any debenture holder or secured creditor to appoint
a receiver, to petition for winding up of the company or apply for
the appointment of an administrator or exercise any other rights over
or against the company's assets.
6.2 The Agreement for Sale shall constitute an agreement to sell the
Goods and not a sale of them and no title to the Goods shall pass
to the Buyer by reason of delivery or acceptance of the same.
6.3 The Seller shall remain the sole and absolute owner of the Goods
until such time as the agreed price of the Goods and all other monies
due or owing from the Buyer to the Seller have been paid to the Seller
by the Buyer and until such time the Buyer shall keep the Goods separate
from those of the Buyer and third parties and properly stored and
identified as the Seller's property. Provided always that in accordance
with clause 5 the Goods shall be at the risk of the Buyer as soon
as they are delivered by the Seller in accordance with clause 5. In
any case where the Goods are delivered by instalments, the provisions
of this clause 6 shall apply separately to each separate delivery
of the Goods.
6.4 The Buyer's right to possession of the Goods shall cease at whichever
is the earliest of the following dates; 6.4.1 on the expiration of
the agreed period of credit, if any
6.4.2 if he, not being a company, commits an act of bankruptcy, makes
a proposal to his creditors for a composition under section 253 of
the Insolvency Act 1986 or does anything which would entitle a petition
for a bankruptcy order to be made or, in the case of a foreign person
does or suffers some act which renders him liable to similar proceedings
6.4.3 if the Buyer being a company, does anything or fails to do anything
which would entitle a receiver to take possession of any assets or
which would entitle any person to present a petition for winding up
or apply for an administration order or, in the case of a foreign
company does or suffers some act which renders him liable to similar
proceedings
6.4.4 if the Buyer, being a company, or any director thereof shall
apply to the court under section 9 of the Insolvency Act 1986 for
the appointment of an administrator
6.5 The Seller may recover from the Buyer at any time those Goods
still in the Buyer's possession if any of the circumstances set out
in clause 6.4 occurs, and for the purpose of such recovery the Seller,
its agents or servants may enter upon any land or buildings upon which
it is reasonably believed that the Goods are situated.
7. Warranty
7.1 The Seller warrants that it has title to and the unencumbered
right to sell the Goods.
7.2 No representation or warranty is given as to the suitability or
fitness of the Goods for any or any particular purpose and the Buyer
shall satisfy himself in this respect and shall be totally responsible
therefor.
7.3 If the Goods are in such a state as would but for this condition
entitle the Buyer to repudiate the contract and/or claim damages from
the Seller the Seller reserves the right (after inspection of any
such Goods) to repair or replace the same provided that the Seller
shall have no obligation to replace any Goods where any attempt has
been made by the Buyer or any third party to remedy any defect in
the Goods.
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8.
Liability
8.1 Introduction
8.1.1 Nothing in Clause 8 shall be deemed to exclude or restrict
the Seller's liability for death or personal injury resulting from
negligence.
8.1.2 Each of the subclauses in 8 is to be treated as separate and
independent.
8.2 The Buyer agrees that no terms, whether conditions, warranties
or innominate terms, express or implied, statutory or otherwise,
shall form part of this contract except where the Buyer deals as
consumer within section 12 of the Unfair Contract Terms Act 1977
when the terms implied by sections 13, 14 and 15 of the Sale of
Goods Act 1979 (and in respect of Services the equivalent provisions
under the Sale of Goods and Services Act 1982) shall be implied
into the contract.
8.3 The Seller shall not be liable for any consequential or indirect
loss suffered by the Buyer whether this loss arises from breach
of a duty in contract or tort or in any other way (including loss
arising from the Seller's negligence).
8.4 Non exhaustive illustrations of consequential or indirect loss
would be loss of profits, loss of contracts, damage to property
of the Buyer or anyone else, and personal injury (including death)
to the Buyer or anyone else (except so far as such injury is attributable
to the Seller's negligence). The Seller's total liability for any
one claim or for the total of all claims arising from any one act
or default of the Seller (whether arising from the Seller's negligence
or otherwise) shall not exceed the contract price.
9. Insurance
The Buyer agrees that it is best able to estimate the extent and
nature of the insurance cover suitable for its business and property
from time to time and can effect at more economic rates than the
Seller appropriate insurance cover for its business and property
including cover against loss damage costs claims and expenses referred
to in Conditions 8.3 or 10 and the Buyer therefore acknowledges
that it is reasonable for the Seller to sell the Goods and the Services
and fix the purchase price on the basis of the exclusions and limitations
of liability and the indemnity set out in these Conditions and the
Buyer agrees that it will be responsible for effecting insurance
cover as above mentioned as may be appropriate to its business and
property including (but not limited to) any required insurance cover
in respect of any loss or damage of whatsoever kind or howsoever
caused whether by reason of the negligence of the Seller or otherwise
to premises, plant or other physical property and the Seller shall
have no legal liability in respect of any such loss or damage.
10. Indemnity—Third Party Claims
The Buyer agrees to indemnify the Seller against any loss, damage,
costs, claims or expenses incurred by the Seller in respect of any
legal liability established against the Seller by a third party
arising out of or in connection with any of the Goods or Services
supplied by the Seller and to procure that the Buyer's insurers
shall in no circumstances whatsoever have any rights or remedies
against the Seller additional to those of the Buyer.
11. Force Majeure
11.1 The Seller shall not be liable for any failure to deliver the
Goods or perform the Services arising from circumstances outside
the Seller's control.
11.2 Non exhaustive illustrations of such circumstances would be
act of God, war, riot, explosion, abnormal weather conditions, fire,
flood, strikes, lockouts, Government action or regulations (U.K.
or otherwise), delay by suppliers, accidents and shortage of materials,
labour or manufacturing facilities.
12. Notice
Any notice to be given hereunder shall be in writing and shall be
deemed to have been duly given if sent or delivered to the party
concerned at P.O. Box 5, Coast Road, Newcastle upon Tyne, NE6 5TP,
or such other address as that party may from time to time notify
in writing and shall be deemed to have been served, if sent by post,
48 hours after posting.
13. Assignment
The Buyer shall not assign or otherwise transfer or purport to so
assign or transfer all or any of its rights, interests or obligations
under the Agreement for Sale without the prior written consent of
the Seller.
14. Waiver
The rights of the Seller shall not be prejudiced or restricted by
any indulgence or forbearance extended to the Buyer and no waiver
of any breach shall operate as a waiver of any subsequent breach.
15. English Law and Jurisdiction
The formation, construction and performance of the Agreement for
Sale shall be governed in all respects by English Law. The Buyer
and the Seller hereby agree to submit to the jurisdiction of the
High Court of Justice of England.
16. Headings
The headings of these Conditions do not form part of the Conditions
and shall not affect the interpretation thereof.
17. Severability
Each of the clauses and subclauses contained in this Agreement for
Sale shall be construed as independent of every other clause and
subclause and in the event of any clause or subclause being determined
by any Court of Law as being unenforceable then such determination
shall not affect the applicability of any other clause or subclause
and the unaffected provisions of this Agreement for Sale shall remain
in full force and effect.
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