In these terms "the Seller" shall mean Kuster Limited, "the Buyer" shall mean the person, firm or company to whom the Seller agrees to sell or supply the goods and/or services; "the Goods" shall mean all goods which are the subject of an order placed by the Buyer with the Seller and "the Services" shall mean any work or labour or any task performed by the Seller for the Buyer.
All Contracts made between the Seller and the Buyer shall incorporate these terms and conditions, which shall prevail over the terms and conditions of the Buyer. The Seller shall not be bound by any condition, representation, warranty or statement at variance with these conditions unless the same is agreed in writing and signed by a Director of the Seller and the Buyer's attention is drawn to the fact that only Directors of the Seller have authority to make any condition, representation or warranty on the Seller's behalf.
The Buyer must notify the Seller within three working days of the date of the Seller's acceptance or acknowledgement of order if such acceptance or acknowledgement does not accurately confirm the Buyer's order failing which the Buyer shall be bound by the terms of the acceptance or acknowledgement.
Unless previously withdrawn the Seller's quotations and tenders shall remain valid for the period stated therein or if no period is stated for 30 days from their date. The Seller's offers estimates quotations tenders and price lists are invitations to treat only. All orders must be in writing and must be accompanied by sufficient information to enable the Seller to proceed without delay with the execution of the order. All orders require the Seller's acceptance in writing to create a contract. Any such acceptance shall nevertheless be subject to the Buyer's credit being approved and to cancellation without liability at the instance of the Seller should the Seller subsequently find the Buyer's credit inadequate.
In the interest of product improvement the Seller reserves the right to alter the design, specification and materials of the goods at any time without prior notice. Illustrations and statements made in the Seller's literature are only intended as a guide and the Seller does not accept responsibility for them.
(a)The Seller will use its best endeavour to deliver the Goods and/or provide the Services on the date provided for in the contract but time is not of the essence of the contract. The Seller shall not be liable in any way for delay in delivery from any cause whatsoever and howsoever arising nor shall such delay entitle the Buyer to reject the Goods or treat the contract as repudiated or render the Seller liable for damages in any way.
(b)Where the Goods do not correspond with the acknowledgement of order, the Buyer must notify the Seller within three days of the date of delivery, failing which the Buyer will be deemed to have accepted the Goods.
Except where the Buyer collects the goods from the Seller, the Seller will repair or replace or make good (entirely at its option) free of charge any goods damaged or lost in transit provided the following conditions are complied with:
(i) In the case of damage or shortage the Seller and the carriers are notified in writing within three days of advice of delivery being sent. In the case of short delivery the delivery shall be accepted by the Buyer as part performance and shall not be deemed to be in breach of contract.
(ii) Where the goods are not delivered the Seller and the carriers are notified within three days of advice of delivery being given.
No claim may be made under this Clause if an acceptance note relating to the Goods has been signed by the Buyer or his agent or employee. Apart from the provisions of this Clause the Seller accepts no liability for damage shortage or loss in transit.
(a) If by reason of the Buyer's default the Goods or any of them have not been taken up or delivered by any date specified for such taking up of delivery, then:
(i) The Buyer shall nevertheless pay the Seller in accordance with Clause 9 of these conditions as if such taking up or delivery had occurred; and
(ii) The Buyer shall pay the Seller reasonable rent for the period (if any) of storage by the Seller of any of the goods which have not been taken up or delivered together with the cost of any additional handling and transport incurred.
(b) During the period of any storage of the Goods or any of them by the Seller as contemplated by sub clause (a) (ii) of this Clause 7 such Goods shall be at the risk of the Buyer.
(a) All prices include only such Goods and accessories as are specified in the quotation and are for the quantities therein expressed. If the Buyer shall request any variation in quantity the price may be varied accordingly.
(b) Unless otherwise specified prices quoted do not include Value Added Tax which will be added at the rate prevailing at the appropriate tax point.
(c) Unless otherwise specified prices quoted include carriage. Where the quoted prices do include carriage the Seller shall determine the route and method of carriage and any special requirements of the Buyer shall be subject to an additional charge.
(d) Unless otherwise specified prices quoted include the Seller's and/or its supplier's standard non-returnable packaging. It is the Buyer's responsibility to dispose of all packaging after delivery.
(e) At any time before delivery has been completed the Seller shall be entitled to vary the prices of the Goods to take into account all or any of the following factors.
(i) Where Goods are imported any variation of currency exchange rates or special taxes or charges imposed by any government;
(ii) Increased costs resulting from the prohibition of other actions of any government;
(iii) Increased labour costs;
(iv) Increased material costs;
(v) Increased transportation costs (if carriage is included in the quoted price);
(vi) Implementing any request by the Buyer for expedited despatch or changes in delivery, schedules, completion dates, quantities, designs or specifications;
(vii) Delays caused by instructions of the Buyer or by failure of the Buyer to give adequate instructions or information.
Unless otherwise agreed in writing by the Seller, payment is strictly net and must be made thirty days following delivery provided that the Seller may in its discretion demand earlier payment. Time of payment shall be of the essence of the contract. In default of payment on the due date the Seller shall be entitled to charge interest on any sums not paid by the due date for payment from the date when such payment became due to the actual date of payment at the rate of three percent above the minimum lending rate for the time being of HSBC Bank plc. The Seller shall at its discretion (without prejudice to its rights to treat the contract as repudiated and claim damages) be entitled to withhold despatch of the Goods or any of them until all monies owing to the Seller by the Buyer have been paid in full.
In the case of a contract providing for call offs or delivery by instalments then each call off or instalment shall be treated as a separate and distinct contract. Default in payment for each delivery by instalment or call off shall at the Seller's option be deemed to be a breach of contract entitling the Seller to rescind the whole unfulfilled contract and to claim direct and consequential losses and damages.
Any liability upon the Seller is subject to the terms of payment and all other obligations upon the Buyer being strictly observed. The Buyer shall not be entitled to withhold payment of any amount payable to the Seller under the contract or any other contract because of any claim of the Buyer in respect of any alleged breach of the contract or any other contract.
(a) Until payment in full for all the Goods sold by the Seller to the Buyer (whether under this or any other contract) has been received by the Seller:
(i) Ownership of the Goods shall remain with the Seller;
(ii) The Seller reserves the right to dispose of the Goods, and the Seller shall be permitted to enter upon the Buyer's premises at all reasonable times to recover the Goods for this purpose;
(iii) The Buyer shall store the Goods so that they may be readily identified as the property of the Seller and during such time the Buyer shall ensure that the Goods are kept and maintained in the condition in which they were delivered.
The Buyer may sell the Goods or any part thereof only by way of bona fida sale at full market value, and where he does so, he shall be entitled for the purpose of such sale to remove those Goods from the said place of storage and upon their delivery to the person purchasing from the Buyer, ownership of those Goods shall pass from the Seller.
(b) The risk in the Goods shall, subject to Clause 6, pass to the Buyer on delivery to the Buyer or the Buyer's carrier.
The Seller shall be entitled without prejudice to its other rights and remedies to (a) terminate wholly or in part any or every contract between the Seller and the Buyer, (b) to suspend any further deliveries under any or every such contract and (c) to demand repayment for undelivered Goods, in any of the following events:
(i) If any sum owing to the Seller under the contract or any other contract is unpaid after the due date.
(ii) If the Buyer refuses to take delivery of any Goods in breach of contract.
(iii) If the Buyer fails to provide security for credit required by the contract.
(iv) If the Seller has bona fida doubts as to the Buyer's solvency or credit worthiness.
(v) If the Buyer is in breach of any other term of the contract or has committed a breach of any other contract between the Buyer and the Seller.
No cancellation or variation of an order by the Buyer shall be effective unless made in writing and until accepted in writing by a Director of the Seller. The Seller reserves the right to refuse to accept such cancellation or variation or to accept cancellation or variation only subject to such conditions as the Seller may determine. Acceptance by the Seller shall be subject to payment by the Buyer of such cancellation or variation charges as the Seller shall deem reasonable. Such charges shall take into account expenses incurred and commitments made by the Seller and all other loses due to such cancellation or variation.
The Seller does not accept any responsibility that the Goods will be suitable for a specific purpose unless a warranty for that purpose is given by the Seller in writing and signed by a Director and the Buyer will accept the Goods provided they are commercially acceptable whether they require finishing works to be carried out upon them or not.
(a) If within 6 months of invoicing, the Seller is notified in writing of any defects which the Seller agrees to be of faulty quality or workmanship, the Seller will at its option replace or credit the sale price of the Goods. If such defect is due to material provided by suppliers nominated by the Buyer being unsuitable then no responsibility shall attach to the Seller whose charges for work executed and/or Goods sold and delivered shall remain payable.
(b) The Seller's liability whether for negligence, breach of contract, misrepresentation or otherwise is limited to replacement of the Goods or reimbursement of their price under this clause and the Seller will not under any circumstances be responsible for any consequential loss of any description whatsoever and howsoever arising.
This guarantee is given in lieu of any right of rejection of the Goods or of any item thereof and of any condition warranty or representation as to the state or suitability of the Goods or otherwise which would otherwise be implied by statute, common law or commercial usage and subject to the aforesaid the Seller shall have no obligation to the Buyer either in tort or under any contract in respect of the condition of any item of Goods delivered or invoiced other than the express obligation contained in these Terms and Conditions of Sale or in any other document incorporated within the contract or in any written condition representation or warranty signed by a Director of the Seller.
Nothing in these terms and conditions shall operate to exclude or restrict the Seller's liability for death or personal injury resulting from negligence, fraud or deceit.
If Goods are manufactured or partly manufactured by the Seller in accordance with a specification or design or instruction provided by the Buyer then the Buyer will indemnify the Seller against all actions, claims, costs, damages and demands of whatsoever description and howsoever arising in relation to any claim in respect of infringement of any letters, patents, registered design, trade mark, copyright (including design copyright) or any other intellectual property right.
Should any event occur whether at the Seller's plant or otherwise which is beyond the control of the Seller such as by way of example industrial action or dispute (including strike or lock out) shortage of materials, act of God, war, fire, flood, drought, breakdown and the performance of this contract is prevented or delayed:
(a) Without prejudice to its rights in the event of breach of contract by the Buyer, the Seller reserves the right to cancel delivery or other performance of the Seller's obligations under any contract in whole or in part and in the event of the Seller exercising such right the Seller's liability shall be limited to the repayment to the Buyer (without interest) of any part of the purchase or contract price or charge already received by the Seller and attributed to any unfulfilled and cancelled part of the contract less any expenses incurred by the Seller down to the date of cancellation in part performance of the contract.
(b) If such prevention or delay continues for 3 months the Buyer may elect to cancel the contract, and if such election is made the Buyer shall be liable to pay to the Seller cancellation charges in accordance with Clause 14 of these conditions.
No waiver by either party in respect of any breach by the other shall operate as a waiver of any subsequent breach.
Any provisions of these conditions which may in any way now or subsequently contravene the law shall be deemed severable and shall not affect any other provisions herein.
The contract shall in all respects be construed and operate in accordance with English law and shall be subject to the exclusive jurisdiction of the English Courts.
Any notices required to be served hereunder shall be deemed to be properly served is sent by prepaid registered or recorded delivery post to the last known address of the party to be served and shall be deemed to be duly served the day following the date of posting.
The clause headings shall not affect the interpretation of these conditions.