1 Interpretation
1.1 In these Conditions; Buyer means the person whose order for the Goods is accepted by the Seller.
“Goods” means the goods (including any installment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions and shall be second hand and/or used unless otherwise stated and shall include the Buyer’s goods submitted to the Seller for repair.
“Seller” means Island Scientific Ltd either in its own name or trading as Medina Art Castings, trading from Unit 9, Ventnor Industrial Estate, Station road, Ventnor, Isle of Wight, PO38 1DX with its Registered Office also at Unit 9, Ventnor Industrial Estate , registered in London under company No 1836200.
“Contract” means the contract for the purchase and sale or repair of the Goods.
“Writing” includes telex, cable, facsimile transmission and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 Basis of the Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made, by the Buyer. This shall be the case even though such other terms and conditions may be submitted in a later document and/or purport to exclude or supercede any terms or conditions inconsistent with them or may be contained in any offer, acceptance or counter offer made by the Buyer. Any quotations given by the Seller shall not constitute an offer. The Buyer’s written order shall constitute an offer.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering in to the Contract, the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller. Descriptions and dimensions and anything in the nature thereof applied and/or indicated by the Seller shall in any event be agreed as approximate.
3 Orders and Specification
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of, and any specification for the Goods shall be those set out in the Buyer’s Order (if accepted by the Seller) and it shall be the Buyer’s responsibility to ensure that the goods are suitable for their intended use and that the Goods are properly used.
3.4 If the Goods are to be manufactured or repaired or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any person which results from the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6 Subject to the Consumer Protection (Distance Selling) Regulations 2000 in the case of a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) if applicable, no order which has been accepted by the Seller may be cancelled by the Buyer, except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4 Price of the Goods
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order (Price). Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of repair or manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis and where the Seller agrees to deliver the Goods otherwise that at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packing and insurance.
4.4 The Price is exclusive of any applicable value added tax chargeable under English law for the time being and any similar additional tax which the Buyer shall be additionally liable to pay to the Seller.
5 Terms of Payment
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the Price of the Goods on or at any time after delivery of the Goods. If the Buyer fails to take delivery of the Goods, the Seller shall be entitled to invoice the Buyer for the Price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the Price of the Goods within 30 days of the date of the Seller’s invoice and the Seller shall be entitled to recover the Price, notwithstanding that delivery may not be passed to the Buyer. The time of payment of the Price shall be of the essence of the Contract. Receipts for payment will be issued only upon payment.
5.3 If the Buyer fails to make any payment on the due date, then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:-
5.3.1 cancel the Contract or suspend any further deliveries to the Buyer.
5.3.2 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); and
5.3.3 charge the Buyer interest (both before and after any judgement on the amount unpaid, at the rate of 5% per annum above Lloyds Bank plc base rate from time to time and shall be calculated on a day to day basis from the date on which payment fell due until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6 Delivery
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises during normal business hours within 7 days after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place and/or by the Seller organising for the Goods to be available at that place. Where the Seller agrees to delivery the Goods, otherwise than at the Seller’s premises, the Buyer shall provide at its expense adequate and appropriate equipment and manual labour for unloading the Goods and the Seller shall be under no obligation under Section 32 (2) of the Sale of Goods Act 1979.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by the Seller to delivery any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments, shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods (or any instalment for any reason other that any cause beyond the Seller’s reasonable control or the Buyer’s fault) the Seller is accordingly liable to the Buyer. The Seller’s liability under this clause shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods to replace those not delivered over the Price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage;
6.5.2 sell the Goods at the best price readily obtainable whereupon the Buyer shall be liable for all the Seller’s related costs and expenses (including but without limitation storage and selling expenses) and for any shortfall between the price received from such sale and the Price.
6.6 Subject to the other provisions of these Conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
7 Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than at Seller’s premises, at the time of delivery or the time of the Goods being available for collection as organised by the Seller or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller or someone acting on his behalf or on his instructions has tendered delivery of the Goods or made them available for collection.
7.2 In the case of Goods to be delivered otherwise than at the Seller’s premises, the Seller shall ensure that it has adequate insurance in place to compensate the Buyer for any reasonable and foreseeable losses arising from damage to the Goods whilst in transit and whilst risk in the Goods is held by the Seller.
7.3 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the Seller shall retain title to and ownership of the Goods and property in the goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.4 Until such time as the property in the goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stores, protected and insured and clearly marked and identifiable as the Seller’s property, but shall be entitled to resell or use the Goods in the ordinary course of its business. The Seller shall be entitled to enter the Buyer’s premises upon reasonable notice to verify the Buyer’s compliance with this Clause.
7.5 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resoled), the Seller shall be entitled at any time to require the Buyer to deliver up the goods to the Seller and, if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so, all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8 Warranties and Liability
8.1 Subject to the conditions set out below, the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 6 months from date of delivery.
8.2 Where the goods are re-conditioned or repaired they shall be secondhand equipment and subject to the conditions set out below, the Seller warrants that they will correspond with any reasonable specification supplied by the Buyer and will be in proper working order for a period of 6 months from date of delivery.
8.3 The warranty given in both paragraphs 8.1 and 8.2 is given by the Seller subject to the following conditions:
8.3.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
8.3.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), mis-use or alteration or repair of the Goods without the Seller’s approval;
8.3.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
8.3.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller, save where the Goods are re-conditioned by the Seller in which event the warranty shall be as set out at paragraph 8.2 above.
8.4 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.5 Where the goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions.
8.6 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure, but in any event 6 months from the date of delivery. If delivery is not refused and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have not liability for such defect or failure and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. In no event shall the Buyer be entitled to reject the Goods on the basis of any defect or failure which is so slight that it would be unreasonable for him to reject it.
8.7 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these conditions, the Seller shall be entitled to repair or replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion replace the Goods (or the part in question) with another or others of different manufacture and/or model type but of equivalent performance or refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.8 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of, or in connection with the supply of the Goods or their use or resale by the Buyer and the entire liability of the Seller under or in connection with the contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.
8.9 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control.
8.9.1 act of God, explosion, flood, tempest, fire or accident;
8.9.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.9.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;
8.9.4 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party) and whether lawful or otherwise;
8.9.5 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.9.6 power failure or breakdown in machinery.
9 Insolvency of Buyer
9.1 This clause applies if:
9.1.1 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a Company) becomes subject to an administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
9.1.2 an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Buyer; or
9.1.3 the Buyer ceases or threatens to cease to carry on business; or
9.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer accordingly.
9.2 If this clause applies, then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for, the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10 General
10.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be addressed in writing to that other party at its registered office or principle 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.
10.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
10.4 The Contract shall be governed by the laws of England and the Buyer agrees to submit to the non-exclusive jurisdiction of the English Courts.