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In these conditions, unless the context requires otherwise:
"Buyer" means the company, firm, body
or person purchasing the Goods.
"Goods" means the subject matter of
the contract.
"Order" means a purchase order in respect
of the Goods and/or Services issued by the Buyer to
the Supplier on the Buyer's official purchase order
form, together with all documents referred to in it.
"Services" means work and/or services
or any of them to be performed by the Supplier for the
Buyer pursuant to the
Order.
"Supplier" means Ian Peberdy and Linda
Peberdy together trading as "Wyvern Business Systems".
1. GENERAL
1.1 The Supplier's quotations are not binding on the
Supplier and a contract (the "Contract") will
only come into
being upon acceptance by the Supplier of the Order and
the following conditions shall be deemed to be
incorporated in the Contract.
1.2 The Contract will be subject to these conditions.
All terms and conditions appearing or referred to in
the Order
or otherwise stipulated by the Buyer shall have no effect.
Any variation of the Contract must be confirmed in
writing by the Supplier.
1.3 Where Goods are to be supplied from stock, such
supply is subject to availability of stocks at the date
of
delivery.
1.4 If the Supplier is to acquire stock to meet the
Order and the Supplier advises the Buyer of this when
acknowledging the Order then if the Buyer cancels the
Order the Supplier shall be entitled to recover from
the
Buyer the reasonable and proper costs associated with
ordering, storing and insuring the stock and if the
Supplier is unable to return the stock to the Supplier
or sell it at cost value within a reasonable period
of time
the cost of the stock.
1.5 Quotations submitted by the Supplier shall remain
open for acceptance for a period of 30 days from the
date of
the quotation, unless in the quotation some other period
is specified or accepted or the tender is withdrawn
by
the Supplier.
1.6 These conditions apply to Services in the same way
as they apply to Goods.
2. PRICES
2.1 The Goods are sold by reference to either the Supplier's
quotation or the Supplier's published price list. If
the Goods are sold by reference to the Supplier's published
price list, the price payable for the Goods shall be
the ruling price as published in the price list current
at the date of despatch of the Goods from the Supplier's
works.
2.2 There shall be added to the price for the Goods
or Services any value added tax and any other tax or
duty relating to the manufacture, transportation, export,
import, sale or delivery of the Goods or performance
of the Services (whether initially charged on or payable
by the Supplier or the Buyer).
2.3 The Supplier shall be entitled to charge the Buyer
for the carriage, freight, insurance and any other transport
costs provided that the costs shall not affect the provisions
of the Contract as to the passing of risk.
2.4 The Supplier reserves the right to charge an administration
fee if the Buyer pays for the Goods by debit or credit
card.
3. TERMS OF PAYMENT
Prices quoted are net and are in sterling unless otherwise
agreed. Subject to credit being approved, accounts are
due for payment not later than 30 days following the
date of invoice; otherwise payment must be received
by the Supplier before delivery. All payments shall
be made without deduction or set-off. When deliveries
are spread over a period, each consignment will be invoiced
as despatched and each month's invoices will be treated
as a separate account and be payable accordingly. Where
contract work is to be performed over a period in excess
of one month, the value of work carried out shall be
ascertained by the Supplier at the end of each month
and (unless the Contract otherwise expressly provides)
a sum equal to such value (or any percentage thereof
specified in the Contract) shall be invoiced and such
invoice shall be paid in accordance with the foregoing
provisions of this clause. Failure to pay any invoice
in accordance with the foregoing terms or other terms
specified in the Contract shall entitle the Supplier
to suspend further deliveries and work both on the same
order and on any other order from the Buyer without
prejudice to any other right the Supplier may have.
The Supplier also reserves the right to charge interest
on overdue accounts, such interest to be calculated
on a day-to-day basis on the amount outstanding at the
rate of 3.per cent above the arithmetic average for
each day of the published base rate of Barclays Bank
Plc. The Supplier reserves the right, where genuine
doubts arise as to a Buyer's financial position or in
the case of failure to pay for any Goods or Services
or any delivery or instalment as aforesaid, to suspend
delivery or performance of any order or any part or
instalment without liability until payment or satisfactory
security for payment has been provided.
4. TITLE TO GOODS
4.1 Notwithstanding that risk in the Goods shall pass
to the Buyer in accordance with clause 7, title to the
Goods (whether separate and identifiable or incorporated
in or mixed with other Goods) shall remain with the
Supplier until payment in full has been received by
the Supplier:
4.1.1 for those Goods;
4.1.2 for any other Goods supplied by the Supplier;
4.1.3 of any other monies due from the Buyer to the
Supplier on any account.
4.2 Until title to the Goods passes to the Buyer under
clause 4.1, the Buyer shall keep the Goods separately
and readily identifiable as the property of the Supplier;
4.3 Any resale by the Buyer of Goods in which property
has not passed to the Buyer shall (as between the Supplier
and the Buyer only) be made by the Buyer as agent for
the Supplier.
4.4 Goods shall be deemed sold or used in the order
delivered to the Buyer.
4.5 At any time before title to the Goods passes to
the Buyer (whether or not any payment to the Supplier
is then overdue or the Buyer is otherwise in breach
of any obligation to the Supplier), the Supplier may
(without prejudice to any other of its rights):
4.5.1 retake possession of all or any part of the Goods
and enter any premises for that purpose (or authorise
others to do so) which the Buyer hereby authorises;
4.5.2 require delivery up to it of all or any part of
the Goods.
4.6 The Supplier may, at any time, appropriate sums
received from the Buyer as it thinks fit notwithstanding
any purported appropriation by the Buyer.
4.7 Each clause of this clause 4 is separate, severable
and distinct and, accordingly, in the event of any of
them being for any reason whatever unenforceable according
to its terms, the others shall remain in full force
and effect.
5. WARRANTY; LIMIT OF RESPONSIBILITY
Except where the Supplier provides Goods which have
a manufacturers warranty in which case the Supplier
shall pass on the manufacturers warranty, the Supplier
warrants that it will (at the Supplier's choice) either
repair or replace any Goods which are accepted by the
Supplier as being defective or not in accordance with
the Contract or any express description or representation
given or made by or on behalf of the Supplier in respect
of the Goods within a period of twelve months from despatch
of such Goods from the Supplier's works (the "Warranty
Period") save that this warranty shall not apply
where the defect or fault is attributable to defective
materials supplied by third parties where the Buyer's
only remedy will be against that third party. In respect
of Services, if the Supplier accepts
within the Warranty Period that it has failed to execute
the Services in accordance with the express terms of
the Contract, the Supplier may, at its option, perform
again such of the Services as have not been carried
out in accordance with the express terms of the Contract
or repay the Buyer the charge for such of the Services
as have not been so performed (provided such charge
shall have been paid to the Supplier by the Buyer).
The Buyer's
remedies in respect of any claim under the foregoing
express warranty or any condition or warranty implied
by law or any other claim in respect of the Goods or
Services or any workmanship in relation to them (whether
or not involving negligence on the part of the Supplier)
shall, in all cases, be limited to repair, replacement,
or re-performance and
any condition or warranty implied by law shall cease
to apply after the expiry of the Warranty Period; and
the Supplier shall not in any circumstances be liable
for any damages, compensation, costs, expenses, losses
or other liabilities, whether direct or consequential,
and any other remedy which would otherwise be available
in law is hereby excluded except to the extent that
such exclusion is prohibited by any rule of law. The
Buyer is solely responsible for making and keeping a
back up copy of all data recorded on any Goods provided
by the Supplier and the Buyer accepts that the Supplier
shall have no liability whatsoever for any loss of data.
A claim in respect of any defect or failure to comply
with the specification or in respect of any delivery
or instalment of any Order or any part of it shall not
entitle the Buyer to cancel or refuse delivery of or
payment for any other Order, delivery or instalment
or any part of the same Order, delivery or instalment.
The Supplier shall use reasonable endeavours to repair,
replace or re-perform the Goods or Services within a
reasonable period of the Buyer making a claim under
the warranty.
7. DAMAGE, SHORTAGE OR LOSS IN TRANSIT
7.1 Unless the Contract otherwise stipulates, the risk
in the Goods passes to the Buyer when the Goods are
despatched from the Supplier's works and the Supplier
accepts no responsibility for any damage or loss in
transit. Claims for damage or loss in transit should
be made on the carrier and any conditions imposed by
the carrier in relation to claims for damage or loss
in transit should be complied with.
7.2 Where the Contract provides for delivery elsewhere
than at the Supplier's works, risk will pass at the
point specified in the Contract and the Supplier will
entertain a claim by the Buyer in respect of loss or
damage in transit only if the Buyer:
7.2.1 gives written notice to the Supplier within 2
days of non-delivery or within 3 days of the delivery
of the Goods in any other case where the Goods have
been delivered by the Supplier; and
7.2.2 where the Goods are transported by an independent
freight carrier, complies in all respects with the freight
carrier's conditions of carriage for notifying claims
for loss or damage in transit including but not limited
to the time period for claims to be notified.
8. DELAYED ACCEPTANCE
If for any reason the Buyer is unable to accept delivery
of the Goods when the Goods are due and ready for delivery,
the Supplier may arrange storage of the Goods at the
Buyer's risk and the Buyer shall be liable to the Supplier
for the reasonable costs (including insurance) of such
storage. This provision is without prejudice to any
other right which the Supplier may have in respect of
the Buyer's failure to take delivery of the Goods or
pay for them in accordance with the Contract.
9. TERMINATION
If the Buyer enters into a deed of arrangement or commits
an act of bankruptcy or compounds with his creditors
or if a receiving order is made against him or (being
a company) it shall pass a resolution or the court shall
make an order that the Buyer shall be wound up (otherwise
than for the purposes of amalgamation or reconstruction)
or if a receiver (including an administrative receiver)
shall be appointed of any of the assets or
undertaking of the Buyer or if the Buyer suffers the
appointment or the presentation of a petition for the
appointment of an administrator or if circumstances
shall arise which entitle the court or a creditor to
appoint a receiver (including an administrative receiver)
or a manager or which entitle the court to make a winding-up
order or if the Buyer takes or suffers any similar action
in consequence of debt or if the financial responsibility
of the Buyer shall, in the opinion of the Supplier,
become impaired or if the Buyer shall commit any breach
of any part of the Contract, the Supplier may, without
prejudice to its rights and remedies under these conditions,
stop all Goods in transit and suspend further deliveries
and by notice to the Buyer may terminate the Contract
immediately.
10. ASSIGNMENT AND SUBCONTRACTING
10.1 None of the rights or obligations of the Buyer
under the contract may be assigned or transferred in
whole or in part without the prior written consent of
the Supplier.
10.2 The Supplier shall be entitled to subcontract any
work relating to the contract without obtaining the
consent of, or giving notice to, the Buyer.
11. NOTICES
11.1 Any notice or other communication to be given under
these conditions must be in writing and may be delivered
or sent by prepaid first class letter post or facsimile
transmission.
11.2 Any notice or document shall be deemed served:
if delivered, at the time of delivery; if posted, 48
hours after posting; and if sent by facsimile transmission,
at the time of transmission.
12. INVALIDITY
The invalidity, illegality or unenforceability of any
provision of these conditions should not affect the
other conditions.
13. THIRD PARTY RIGHTS
A person who is not party to this agreement shall have
no right under the Contracts (Rights of Third Parties)
Act 1999 to enforce any term of this agreement. This
clause does not affect any right or remedy of any person
which exists or is available otherwise than pursuant
to that Act.
14. LAW AND JURISDICTION
The Contract (and any proceedings whereby one party
might be entitled to join the other as a third party)
shall be governed by and construed in all respects in
accordance with English law and the parties hereby submit
to the exclusive jurisdiction of the English courts.
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