TERMS & CONDITIONS OF SALE

GENERAL
CONDITIONS APPLICABLE
ORDERS, ACKNOWLEDGEMENTS AND VARIATIONS
DESCRIPTION
DESIGNS AND INTELLECTUAL PROPERTY
PRICE
DELIVERY
QUANTITIES INSTALMENTS AND STORAGE
TERMS OF PAYMENT
SUSPENSION AND CANCELLATION
CLAIMS FOR DAMAGE IN TRANSIT/DEFECTS
WARRANTY
TITLE TO GOODS
RISK AND INSURANCE
NOTICES
REMEDIES OF BUYER
THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
LAW

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Term & Conditions of Sale

0.0 GENERAL

0.1 In these Conditions:

0.1.1 the following expressions shall have the following meanings:

"Buyer" the individual firm company or other party from whom an order to supply Goods and/or provide Services is received by the Seller

"Conditions" the standard terms and conditions of sale of the Seller as set out herein and includes any additional terms and conditions of sale agreed by the Seller

"Contract" a contract for the supply of Goods and/or provision of Services by the Seller to the Buyer

"Date of Delivery" the date on which delivery of the Goods and/or Services takes place pursuant to Condition 6

"Goods" the goods which the Seller is to supply under the Contract

"Price" the price for the Goods excluding packaging, loading, carriage, insurance, off-loading and installation and VAT pursuant to Condition 5

"Seller" Initial Industry Ltd and any subsidiary or holding company or associate (as defined in the Companies Act 1985 (as amended)) of the said company

"Services" the work or services or any of them to be provided by the Seller under the Contract

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1.0 CONDITIONS APPLICABLE

1.1 These Conditions shall apply to all contracts for the sale of Goods and/or Services by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation or similar document

1.2 All orders for Goods and/or Services shall be deemed to be an offer by the Buyer to purchase Goods and/or Services pursuant to these Conditions

1.3 Acceptance of delivery of the Goods and/or Services shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions

1.4 Words importing the singular number shall include the plural and vice versa, words importing one gender shall include all genders, and words importing persons shall include bodies corporate, unincorporated associations and partnerships

1.5 If satisfactory references on the Buyer are not provided within seven days of a request therefore by the Seller, the Seller may terminate the Contract without liability

1.6 The Seller reserves the right to assign or sub contract the Contract or any part thereof. The Buyer shall not be entitled to assign the benefit of the Contract without the consent in writing of the Seller

1.7 If at any time any one or more of the provisions or part thereof of these Conditions becomes or is or is held by a court to be invalid, illegal or unenforceable in any respect under any law, the validity and enforceability of the remaining provisions shall not in any way be affected or impaired thereby

1.8 Any reference to any statute or statutory instrument or any section or part thereof includes any enactment replacing or amending it or any instrument, order or regulation made under it and also includes any past statutory provisions (as from time to time modified or re-enacted) which such provision has directly or indirectly replaced

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2.0 ORDERS, ACKNOWLEDGEMENTS AND VARIATIONS

2.1 Notwithstanding that the Seller may have given a detailed quotation or estimate either verbally or in writing no order shall be binding on the Seller unless and until it has been acknowledged in writing by the Seller or the Goods are delivered or the Services are provided by the Seller to the Buyer pursuant to the order

2.2 These Conditions are incorporated in the Contract and contain the entire obligations between the Seller and the Buyer. In the case of any inconsistency between any letter or quotation incorporating or referring to these Conditions and any order, letter or form of contract sent by the Buyer to the Seller, whatever may be their respective dates, the provisions of these Conditions shall prevail. In the event of the Seller entering into the Contract without the Seller having submitted a written quotation or other letter or document incorporating or referring to these Conditions but in circumstances where the Buyer has had prior notice of these Conditions then all Goods supplied and/or Services provided shall be subject to these Conditions

2.3 No variation of the Contract by the Buyer shall be binding upon the Seller unless made in writing and signed on behalf of the Seller

2.4 Any representations (except fraudulent misrepresentations) or warranties made by or on behalf of the Seller prior to the Contract (whether verbally or in writing) are hereby expressly excluded and shall be of no effect

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3.0 DESCRIPTION

3.1 To enable the Seller to pursue its policy of continuous improvement of its products the Seller reserves the right to amend the specification of its products and services from time to time whether before or after the making of the Contract

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4.0 DESIGNS AND INTELLECTUAL PROPERTY

4.1 Unless otherwise agreed in writing, the Seller will be the sole owner of all inventions, formulations, tools, patterns, designs or other similar items and the copyright in all documents and drawings made or produced by it in preparing a quotation for the Buyer or in the course of work on any Contract with the Buyer

4.2 Where it is agreed that ownership in any data, patterns, drawings, tools or other similar items is to pass to the Buyer, property shall only pass when such items have been paid for by the Buyer in full

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5.0 PRICE

5.1 The price shall be the Seller’s quoted price exclusive of VAT which shall be due at the prevailing rate at the date of the Seller’s invoice.

5.2 Unless otherwise stated the Price does NOT includes the cost of packaging, loading, carriage, insurance, off-loading and installation

5.3 The Seller shall be entitled to adjust the Price of the Goods and/or Services whether before or after the making of the Contract in the event of any variation in the cost to the Seller of supplying the same or any part thereof caused by any reason whatsoever beyond the control of the Seller and the Seller’s written certificate of such variation shall be conclusive evidence of any such variation and the extent thereof

5.4 On occasion, the prices payable of goods advertised on the seller’s web site may differ from those prices offered in the then current catalogue or other publications, and the seller is under no obligation to honour any web site price if there is such a difference.

5.5 Occasionally an error may occur with the seller’s web site and goods may be incorrectly priced in which circumstances the seller will not be obliged to supply the goods at the incorrect price.

5.6 Any buyer who purports to sign any trade credit account application form or terms of business on behalf of a limited company does so a guarantor and irrevocably undertake to guarantee the payment of all monies owing to the seller by the relevant limited company if the seller believes that the limited company cannot meet its obligations.

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6.0 DELIVERY

6.1 Delivery of Goods shall be deemed to be effected by the Seller at the following times:

6.1.1 where Goods are delivered by the Seller, when the same arrive prior to unloading at the Buyer's premises or at premises nominated by the Buyer or at the nearest accessible road point to such premises

6.1.2 where Goods are delivered by an independent carrier, at the time of loading onto the carrier's vehicle

6.1.3 where Goods are to be collected by or on behalf of the Buyer by its servants or agents, when the same are collected or when the Seller notifies the Buyer that the same are ready for collection

6.2 Delivery of Services shall be deemed to be effected by the Seller at the time of completion by the Seller of the Services

6.3 Whilst the Seller will make every reasonable effort to complete the Contract by the date(s) therein specified for delivery of Goods and/or provision of Services such date(s) shall only constitute the times by which the Seller expects to effect such delivery but the time for performance of the Contract by the Seller shall not be of the essence of the Contract, the Seller's failure to so deliver and/or provide by the due date(s) shall not constitute a breach of Contract and the Seller shall not in any circumstances be responsible for any direct or consequential loss or damage of any kind whatsoever resulting therefrom. The Seller may wholly or partly suspend deliveries of Goods and/or provision of Services and the Buyer shall accept late delivery of such Goods and/or provision of Services unless the Buyer has cancelled the Contract in accordance with the provisions of Condition 9.2

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7.0 QUANTITIES INSTALMENTS AND STORAGE

7.1 The quantity and description of the Goods shall be as set out in the Seller’s quotation

7.2 The Goods shall be manufactured and supplied and/or Services provided in accordance with the description contained in the Seller’s specification and manufacture

7.3 The Seller may from time to time make changes to the specification of the Goods which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the Goods

7.4 Any contractual description of the Goods and/or Services by the Seller relates to the identity of the Goods and/or Services but only if it relates to a central characteristic of the Goods and/or Services or to a substantial ingredient of their identity

7.5 Where Goods are delivered and/or Services are provided by installments each installment shall be deemed to be sold under a separate Contract and no default in respect of any one installment shall affect due performance of the Contract as regards other installments

7.6 The Seller will endeavour to deliver the quantity of Goods and provide the quality of Service ordered. If there is a variation to the Goods or Service which is so slight that it would be unreasonable for the Buyer to reject delivery of them the Buyer shall be deemed to have accepted the Goods and Services and shall pay for the actual quantity of Goods and quality of Service delivered

7.7 The Buyer shall indemnify and keep indemnified the Seller in full against all costs, losses, damages and expenses whatsoever arising in connection with the storage of the Goods if the Seller shall be prevented from delivering any of the Goods and/or providing any of the Services in accordance with the Contract as a result of delay or default on the part of the Buyer or any reason beyond the Seller's reasonable control and such costs, losses, damages and expenses will be added to and form part of the price of the Goods. The Seller shall be entitled in its absolute discretion and without giving prior notice to the Buyer at the expiration of 3 months to sell or otherwise dispose of Goods kept in storage

7.8 While the seller endeavours to hold sufficient stock to meet all orders, if the seller has insufficient stock to supply or deliver the goods ordered and paid for by the buyer, the seller may, at its discretion, supply or deliver a substituted product or refund the buyer the price paid for such goods as soon as possible and in any case within 30 days or, in the case of an account customer, the seller may, in its absolute discretion, as soon as possible raise a credit to offset the amount invoiced to the buyer.

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8.0 TERMS OF PAYMENT

8.1 Unless otherwise agreed the price shall be due and payable at the Seller's offices in sterling 30 days after the date of the Seller's invoice provided that the Seller reserves the right to require payment prior to delivery of the Goods and/or completion of the Services or on sending notification that the Goods are in a deliverable state or if the Buyer has previously failed to make any payment owing to the Seller on the due date.

8.2 Time for payment shall be of the essence

8.3 If the Buyer does not pay the whole or any part of the price on the required day then the Buyer shall pay to the Seller interest on the amount outstanding from the required day until the actual date of payment at the rate of 4% p.a. over the base rate of Lloyds TSB Bank plc from time to time in force which shall accrue on a daily basis

8.4 So long as any payment due from the Buyer to the Seller is outstanding, whether under the same or any other Contract or transaction, the Seller shall have a general lien on any Goods and any other property of the Buyer in its possession for whatever purpose and whether worked upon or not. The Seller shall be entitled on the expiration of not less than 14 days notice in writing to the Buyer to dispose of such property and to apply the proceeds towards satisfaction of such debts

8.5 The Buyer shall not be entitled to withhold payment of any amount due to the Seller by reason of any disputed claim by the Buyer in connection with the Contract nor shall the Buyer be entitled to set off against any amount payable under the Contract to the Seller any amount which is not then due and payable by the Seller or for which the Seller disputes liability

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9.0 SUSPENSION AND CANCELLATION

9.1 If the Buyer shall commit any breach of the Contract and fail to remedy the same within 7 days of receiving the Seller's request in writing so to do or any distress or execution is levied upon any goods or property of the Buyer or 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 an incorporated company) passes a resolution for winding up (otherwise than for the purposes of amalgamation or reconstruction), or a Court makes an order to that effect, or an encumbrancer takes possession, or an administrative receiver or receiver is appointed, of any of the property or assets of the Buyer, or the Buyer ceases, or threatens to cease, to carry on business or is unable to pay its debts within the meaning of section 123 Insolvency Act 1986, or 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, the Seller may: (a) stop any Goods in transit and suspend further deliveries and/or (b) suspend work on the Contract and/or (c) hold by way of a general lien all materials or other property of the Buyer in the possession of the Seller and/or (d) determine the Contract forthwith; and if the Goods and/or Services, or any part of them have been delivered and/or provided but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary

9.2 In the event of the Seller other than in any of the circumstances set out in Condition 9.1 being prevented or hindered from completing the Contract either wholly or in part in accordance with the terms thereof for any reason beyond its reasonable control then further performance of the Contract shall be suspended for the period during which the Seller is so prevented provided that in the event of the Contract being suspended for a continuous period of more than 3 months then either party may give the other notice in to terminate the Contract forthwith and in such circumstances the Buyer shall pay for all Goods supplied and/or Services provided to the date of such termination such payment to be made on or before the last day of the month following the month during which termination was effected. The Seller shall be under no liability whatsoever to the Buyer for any direct or consequential loss or damage suffered by the Buyer as a result of the Seller's inability to perform its obligations under the Contract in these circumstances

9.3 The Seller's rights contained in Condition 14 shall continue beyond the discharge of the parties' primary obligations under the Contract consequent upon its termination

9.4 The termination of the Contract for whatever reason will be without prejudice to the rights and duties of either party accrued prior to termination

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10. CLAIMS FOR DAMAGE IN TRANSIT/DEFECTS

10.1 The Buyer shall inspect the Goods within 2 days of Delivery and whether or not the Buyer carries out such obligation to inspect no claims for non-delivery, shortages in quantity of units delivered, defective Goods, partial loss or damage to Goods will be accepted by the Seller unless: (a) they are notified in writing by the Buyer to the Seller within 2 days after the Date of Delivery (in the case of partial loss, damage or defective Goods) or 7 days after the date of the invoice (in the case of non-delivery) and (b) the Goods in respect of which a claim is made together with the packing are preserved intact as received for a period of 14 days from notification of any such claim (or 35 days in the case of an export order) and the Buyer permits the Seller or its servants or agents full and free right of access to inspect the Goods and investigate the claim. Section 3 Sale and Supply of Goods Act 1994 shall not apply

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11. WARRANTY

11.1 The Seller warrants that the Goods supplied will at the time of delivery correspond to the description given by the Seller. Except where the Buyer is dealing as a consumer (as defined in the Unfair Contract Terms Act 1999 Regulation 3(1) all other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are excluded to the fullest extent permitted by law

11.2 In substitution for all and any other rights which the Buyer might or would have had but for these Conditions, and subject to Condition 10.1, the Seller shall make good by replacement or, at its option, repair any failure (fair wear and tear excepted) in the Goods and/or Services which, under conditions of proper use and maintenance, results from defects in the Seller's manufacture, design, materials or workmanship and which appears not later than 12 months after the Date of Delivery

11.3 Notwithstanding the provisions of Condition 11.1, in the case of a claim falling within Condition 11.1, the Seller reserves the right at its sole discretion to credit the Buyer in full the price paid by the Buyer to the Seller

11.4 The Seller's liability under this Condition shall automatically cease if: (a) the Buyer is in breach of this or any other contract made with the Seller; or (b) the Seller or its servants or agents are denied full and free right of access to the allegedly defective Goods and/or Services; or (c) the Goods have been treated improperly or in a way which has contributed to the defect (whether before or after a defect is detected)

11.5 THE WARRANTY SET OUT IN CONDITION 11.1 SHALL BE IN LIEU OF ANY WARRANTIES CONDITIONS OR UNDERTAKINGS WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE HOWSOEVER WHICH WARRANTIES, CONDITIONS AND UNDERTAKINGS ARE HEREBY EXPRESSLY EXCLUDED, EXCEPT THAT SUCH EXCLUSIONS WILL NOT APPLY TO ANY IMPLIED CONDITION THAT THE SELLER HAS OR WILL HAVE THE RIGHT TO SELL THE GOODS WHEN THE PROPERTY IS TO PASS

11.6 THE SELLER'S RESPONSIBILITY IS LIMITED TO THE TERMS OF THE FOREGOING PROVISIONS OF THIS CONDITION AND (EXCEPT IN RESPECT OF DEATH OR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF THE SELLER, ITS SERVANTS OR AGENTS) THE SELLER SHALL NOT BE LIABLE FOR ANY CLAIM FOR DIRECT OR INDIRECT CONSEQUENTIAL OR INCIDENTAL LOSS, INJURY OR DAMAGE WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT) MADE BY THE BUYER OR ANY THIRD PARTY AGAINST THE SELLER ARISING OUT OF OR IN CONNECTION WITH ANY DEFECT IN THE GOODS AND/OR SERVICES

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12. TITLE TO GOODS

12.1 Until payment in full of all monies due and owing by the Buyer to the Seller on any account whatsoever has been received full legal and beneficial ownership of the Goods shall be retained by the Seller notwithstanding that the risk in the same shall pass to the Buyer at the time of delivery

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13. RISK AND INSURANCE

13.1 The risk in the Goods shall pass to the Buyer at the time of delivery as provided for in Condition 6. Notwithstanding the reservation of title contained in Condition 12, the Buyer shall insure the Goods and/or any products made wholly or partly therefrom for the full amount of the price payable under the Contract from the time of delivery of the Goods until the date title in the Goods passes to the Buyer pursuant to Condition 12

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14. NOTICES

14.1 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

14.2 Any notice given pursuant to Condition 14.1 shall be deemed to have been served if delivered by hand, on the first Business Day following delivery; if sent by post, on the third Business Day after posting if the address of the recipient is in the country of despatch, otherwise on the seventh Business Day after posting; if sent by facsimile transmission, on the first Business Day following successful transmission

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15.0 REMEDIES OF BUYER

15.1 Where the Buyer rejects the Goods and/or Services the then the Buyer shall have no further rights whether in respect of the supply to the Buyer of such goods and/or Services] or the failure by the Seller to supply Goods and/or Services which conform to the Contract

15.2 Where the Buyer accepts the Goods and/or Services or has been deemed to accept any Goods and/or Services then the Seller shall have no liability in respect of those Goods and/or Services

15.3 The Seller shall not be liable to the Buyer for late delivery or short delivery of the Goods and/or Services

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16.0 THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999

16.1 The provisions of The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract and a person who is not a party to the Contract shall have no right under the Act to enforce any term of the Contract

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17.0 FORCE MAJEURE

17.1 The seller shall have no liability to the buyer for any failure or delay in supply or delivery or for any damage or defect to goods supplied or delivered hereunder that is caused by any event or circumstance beyond their control ( including strikes. lockouts and other industrial disputes).

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18.0 LAW

18.1 These Conditions shall be governed by and construed in accordance with the laws of England

18.2 Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with these Conditions

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