1.1 In these Conditions (“the Conditions”)
“Seller” means Jacques Products Limited and includes its employees and agents.
“Buyer” means the person ordering goods from the seller and includes any agent or servant of such person acting in the course of his agency or, respectively, employments.
“Goods’ are product(s) to be sold or supplied by Seller to Buyer pursuant to order of Buyer as acknowledged prior to or upon delivery by Seller.
“the Contract” means each contract for the sale and purchase of Goods made between Seller and Buyer whether in writing, orally or both, to which the Conditions apply.
“person” means and includes any person, firm company or other body corporate or incorporate.
1.2 In any case, where the Contract stipulates the application of any international trade defined in incoterms 1980 (or any amendment to or revision thereof) such definition shall be deemed to be incorporated herein. In the event of any inconsistency or ambiguity arising between any of the provisions of incoterms 1980 and of the Conditions the latter shall prevail.
The Conditions shall prevail over any inconsistent terms or conditions referred to in Buyer’s order or in correspondence and any condition or stipulates to the contrary are hereby excluded and extinguished. No variation or waiver of or addition to the Contract shall be binding unless expressly stipulated agreed or confirmed in writing by Seller.
3. Agreement to Sell
Seller agrees to sell and Buyer agrees to buy the Goods.
4. Orders and Delivery
4.1. Orders are accepted by Seller subject to availability of Goods for Delivery. The delivery date specified in the contract (“Requested Date”) is approximate only and Seller shall be under no liability in respect of any loss, injury damage or expense consequent upon any delay in delivery from whatever cause including negligence of Seller.
4.2. In any case where the price includes freight charges or other costs of carriage, Seller shall have the right in its own discretion to select the means of transport.
4.3. Upon refusal or failure of Buyer to take delivery of Goods on or about Requested Date, Seller shall at its own discretion be entitled to store Goods at the risk of the Buyer and Buyer shall in addition to the invoice price pay all costs and expense of such storage and any additional costs of carriage occurred.
Until payment in full has been received by Seller for all Goods supplied by Seller under Contract.
(a) title to the goods shall remain in Seller.
(b) the goods shall so far as practicable be kept separate from other goods on the premises of the Buyer and so as to be readily identifiable as goods of Seller and
(c) Buyer shall be at liberty to resell the goods in the ordinary course of business or to use the goods in any process provided that such liberty shall be deemed automatically determined without the need for notice if any of the events in relation to Buyer specified in Condition 12 shall occur.
Upon determination of Buyer’s liberty to resell or use the goods it shall promptly place the goods at Seller’s disposal and Seller shall be entitled to enter upon Buyer’s premises for the purpose of removing the goods. For the purpose of the foregoing paragraphs of this Condition and in the absence of evidence to the contrary Goods supplied by Seller to buyer at any time shall be deemed to have been resold used or processed in the order in which Goods were supplied. Nothing herein shall give Buyer the right to return the Goods to Seller.
In the absence of express stipulation in the Contract of any international trade term defined in incoterms 1980, risk in the Goods shall pass to Buyer at such place as may be specified in the Contract as the point of delivery of the Goods to Buyer.
The Price(s) payable for the Goods shall be as agreed and subsequently stated in Seller may increase price, by reference to foreign exchange fluctuations or variations in the cost of raw materials or otherwise, change the amount of any cost of carriage or freight allowance or vary the terms of payment at any time prior notice to Buyer. Buyer may at any time within ten (10) days of such notice give Seller notice of its objection to any such increase, change or variation and in the absence of any such objection shall be deemed to have accepted the same, if Buyer so objects, Seller may either eject to continue to supply Buyer at the price, cost of carriage and freight allowance and/or terms of payment existing at the time of the notified increase, change or variation or, at its own discretion terminate the Contract forthwith upon notice to Buyer.
8.1. Seller’s terms of payment applicable to any order are thirty (30) days from date of invoice or such other terms as are notified by Seller pursuant to Condition 7.
8.2. If any payment which is to be made hereunder by Buyer to Seller is overdue interest will be chargeable thereon as well after as before judgement on a day basis at an annual rate of 2% over LIBOR until the sum is paid.8.3. Where any sum owed by Buyer to Seller under the
Contract is overdue, or if at any time the credit standing of Buyer has in the opinion of Seller been impaired for any other reason, Seller may (without prejudice it its rights pursuant to Condition 13) in its own absolute discretion either demand of all outstanding balances whether due or not and/or cancel all outstanding order and decline to make further deliveries except upon receipt of cash or satisfactory security. The setting off or withholding of payment by Buyer in respect of any claim shall not be allowed unless expressly agreed by Seller in writing.
9. Warranty & Liability
9.1.Buyer shall inspect the Goods immediately after delivery. If any Goods are properly rejected by Buyer, Buyer shall not be entitled to return the same to Seller until Seller has conducted an inspection and issued definite shipping instructions, provided that Seller must arrange inspection and shipping instructions within 60 days of rejection.
9.2. The Buyer’s right of rejection shall be negated by:-
(a) Failure of Buyer to give written notice of the alleged defect in the Goods. Such notice to be received by Seller within 3 days of the date of delivery of the Goods, in the case of alleged damage or loss in transit, and within 30 days of such date on the case of alleged intrinsic defect.
(b) Buyer not affording Seller reasonable opportunity to inspect the goods.
(c) Buyer not having used the goods in accordance with any instruction or recommendations of Seller.
(d) Buyer either making further use of Goods that are alleged to be defective or mixing such goods after the time at which Buyer discovers or ought to have discovered that they are defective.
9.3. Seller shall not be liable in respect of any loss or damage whatsoever arising from the claim of any person against Buyer nor for loss of profits, loss of business, economic loss or other consequential loss or damage suffered by Buyer.
9.4. All recommendations and advice given by or on behalf of Seller to Buyer as to methods of storing, using or applying the goods, the purposes to which the goods may be applied and the suitability of using the goods in any manufacturing process or in connection with any other materials are given without liability on the part of Seller.
9.5. All drawings, photographs, illustrations, performance date, dimension, weights and the like, contained in any literature or other material supplied by Seller under or in connection with the Contract or made by way of representation are provided or made by Seller in the belief that they are as accurate as reasonably possible but they do not constitute a description of the goods, nor shall they be taken as representations by the Seller nor are they warranted to be accurate.
10. Force Majeure
Seller shall not be liable for any loss or damage caused by or which may be suffered by Buyer as a direct or indirect result of the supply of the Goods by Seller being prevented, restricted, hindered or delayed by reason
of any circumstances outside the control of Seller and affecting the provision of all or any part of the Goods by the Seller’s usual source of supply or delivery of the Goods by the Seller’s normal route or means of delivery or other circumstances whatsoever.
11. Containers and freight
11.1. No returnable container in which Goods are supplied by Seller shall be used for the shipment or storage of any other material. If a container has been so used, Seller reserves the right not to take it back or credit the return of it
11.2. In any case where freight charges or other costs of carriage are paid by Seller and excess demurrage is incurred by Seller, then Seller shall have the right to pass on such cost to Buyer, provided that the excess demurrage
is attributable to undue delay by Buyer unloading Goods.
If Buyer shall fail to make any payment when it becomes due, or shall default in due performance or observance of any other obligation under the Contract, or shall enter into liquidation or receivership, Seller may by notice in writing to buyer forthwith determine the Contract. Upon such determination Seller shall be entitled to enter upon Buyer’s premises in order to remove any of the goods to which Seller has retained title and for this purpose Buyer shall afford Seller all reasonable assistance to locate and take possession of the goods.
Failure on the part of the Seller to exercise or enforce any right conferred by the Contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise of enforcement thereof any time or times thereafter.
14. Law & Jurisdiction
The Contract shall be governed by and construed and interpreted in accordance with English law. Seller and Buyer agree to submit to the jurisdiction of the English Courts in respect of any dispute arising out of and in connection with the Contract.
15. This contract is divisible. Each delivery made hereunder:
i) shall be deemed to arise from a separate contract, and
ii) shall be invoiced separately and any invoice for a delivery shall be payable be payable in full in accordance with the terms of payment provided in the delivery of any other installments.