1. Interpretation 1.1 In these Conditions:
'Seller means Image Post Ltd, ( company number 7376799) whose registered office is at Homewood farm, 89 North Cray Road, Sidcup, Kent,DA14 5EP [and any subsidiary of the Seller from time to time];
'Buyer' means the person whose order for the purchase of the Goods is accepted by Image Post Ltd;
'Goods' means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions;
'Goods for Export' means Goods purchased by the Buyer for export from the United Kingdom;
'Conditions' means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;
'Contract' means the contract for the purchase and sale of the Goods;
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.
1.4 Any reference to writing in these Conditions includes facsimile transmission and electronic mail.
2. Basis of the sale
2.1 The Seller shall sell and the Buyer shall buy the Goods in accordance with [any written quotation of the Seller which is accepted by the Buyer, or] any written order of the Buyer which is accepted by the Seller, subject [in either case] to these Conditions.
2.2 Unless the Seller and the Buyer agree otherwise, these Conditions shall govern the Contract to the exclusion of any other terms and conditions.
2.3 The Seller reserves the right to vary these Conditions but no such variation shall be binding unless authorised in writing by the Seller's [authorised representative].
2.4 In entering into the Contract the Buyer acknowledges that it does not rely on any representations concerning the Goods made by the Seller's employees or agents, which are not confirmed in writing by the Seller. The Buyer follows or acts upon any advice or recommendation given by the Seller or its employees or agents which is not confirmed by the Seller in writing entirely at its own risk and the Seller shall not be liable for any advice or recommendation 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.
3. Orders and specifications
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 If the Goods are to be manufactured 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 or any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification.
3.3 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 any terms that the Seller shall reasonably stipulate as a condition of its consent] or [subject to the Buyer paying the Seller a sum of money equal to the Seller's losses resulting from the cancellation].
3.4 The Seller shall supply the Goods to the Buyer on a firm sale basis only and not on sale or return terms, unless prior arrangement has been made.
3.5 Where Goods are purchased by the Buyer for sale in the United Kingdom, the Seller shall, at its sole discretion,
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. [In the case of Goods for Export, 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 the Seller may alter them 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 Seller's control.
4.3 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
4.4 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 the Buyer shall be liable to pay the Seller's charges for delivery on the following basis:
4.4.1 Delivery within the United Kingdom of an order with a contract price of £80.00 exclusive of VAT shall be made free of charge;
4.4.2 Delivery within the United Kingdom of an order with a contract price of less than £80.00 value exclusive of VAT shall be charged at £8.50 [exclusive of VAT]. Where the Goods are supplied to the Buyer at a discounted price the Seller reserves the right to levy a shipping charge which is based on the cost of delivery and the price of the Goods;
4.4.3 in the case of Goods for Export, the Buyer shall pay the full shipping costs.
4.5 The Seller reserves the right to increase the charge for delivery on giving the Buyer prior notice in writing.
4.6 The Seller reserves the right to increase the price of Goods for Export where the Buyer requests any variation in the specification of the Goods.
5.Terms of payment
5.1 Where the Buyer does not have an account with the Seller, all Goods shall be paid for in full in advance by the Buyer (including value added tax and delivery charges)
and the Seller shall be under no liability to supply or deliver the Goods until full payment has been received.
5.2 Where the Buyer has an account with the Seller, unless agreed otherwise in writing by the Seller and the Buyer, the Seller shall be entitled to invoice the Buyer for the price of the Goods on delivery of the Goods, unless [the Goods are to be collected by the Buyer or] the Buyer wrongfully fails to take delivery of the Goods, in which event 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.
5.3 Where the Buyer has an account with the Seller, the Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) within 30 days from the date of the Seller's invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.
5.4 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: -
5.4.1 cancel the Contract or suspend any further deliveries to the Buyer;
5.4.2 appropriate any payment made by the Buyer to such to 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
5.4.3 exercise its statutory right to claim interest and compensation for debt recovery costs under the late payment legislation (Late Payment of Commercial Debts (Interest) Act 1998) which would allow the seller to claim statutory interest equivalent to the base rate applicable at the time the debt becomes late plus 8% for each day of late payment and also compensation for debt recovery costs.
6. Delivery
6.1 Delivery of the Goods shall be made by [the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or] the Seller delivering the Goods to the Buyer's premises or other place specified by the Buyer.
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 deliver 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 than any cause beyond the Seller's reasonable control or the Buyer's fault, and the Seller is accordingly liable to the Buyer, the Seller's liability 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:
6.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs of storage; or
6.6.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
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 the Seller's premises,] at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Frames supplied to the Buyer on loan in accordance with a Contract shall at all times remain the property of the Seller.
7.3 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, legal and equitable ownership of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full the price of: -
7.3.1 the Goods; and
7.3.2 all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.4 Until 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 protected and insured and identified as the Seller's property, but shall be entitled to resell the Goods in the ordinary course of its business.
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 resold), 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 money owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) immediately become due and payable.
8. Warranties and liability
8.1 Subject to the conditions set out below the Seller warrants that on delivery to the Buyer and for a period of three months thereafter, the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979 and reasonably fit for the purpose for which they are commonly bought.
8.2 The above warranty is given by the Seller subject to the following conditions: -
8.2.1 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence or alteration of the Goods without the Seller's approval;
8.2.2 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 had not been paid by the due date for payment.
8.3 Any claim by the Buyer which is based on any defect or failure in the quality or condition of the Goods or their fitness for purpose 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. 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 no 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.
8.4 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 fitness for purpose is notified to the Seller in accordance with these Conditions, the Seller shall, at its election, either replace the Goods (or the part in question) free of charge or refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer. Any Goods replaced by the Seller shall be supplied in accordance with these Conditions.
8.5 Subject to Condition 8.1 above, 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 (other than the condition as to title implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
8.6 Nothing in these Conditions excludes or limits the Seller's liability: 8.6.1 for death or personal injury caused by the Seller's negligence; or
8.6.2 for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
8.6.3 for liability under section 2(3) of the Consumer Protection Act 1987; or 8.6.4 for fraud or fraudulent misrepresentation. 8.7 Subject to Condition 8.5 and Condition 8.6 above:
8.7.1 the Seller's total liability in contract, tort (including negligence and breach of statutory duty) misrepresentation, restitution or otherwise, arising in connection with the Contract, shall be limited to the price payable by the Buyer under the Contract; and
8.7.2 the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct or indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
9. Force majeure
In the event that the Seller shall be delayed in or prevented from carrying out any of its obligations under the Contract as a result of any cause beyond its control including (but not limited to) acts of God, fire or accident, governmental actions, war or national emergency, acts of terrorism, strikes, lockouts, breakdown of plant, failure of a third party to deliver goods or materials, the Seller shall be at liberty (at its election) to suspend the Contract in which case it shall be relieved of all its obligations and liabilities incurred under the Contract insofar as and for as long as the fulfilment of the obligations and liabilities is thereby prevented, frustrated or impeded or to cancel the Contract without incurring any further liability.
10. Indemnity
10.1 If any claim is made against the Buyer that the Goods infringe, or that their use or resale infringes, the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
10.1.1 the Seller is offered and accepts full control of any proceedings or negotiations in connection with any such claim;
10.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
10.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings, without the consent of the Seller;
10.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
10.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
10.1.6 without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
11. Insolvency of buyer
11.1 This Condition applies if:
11.1.1 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 order, or an administrator is otherwise appointed in respect of the Buyer, or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or a receiver or administrative receiver is appointed over any of its assets; or
11.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
11.1.3 the Buyer ceases, or threatens or cease, to carry on business or is unable, or admits its inability to pay its debts as they fall due; or
11.1.4 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; or
11.1.5 any other circumstance arises in any jurisdiction which in the opinion of the Seller is analogous to any of the circumstances referred to in clauses 11.1.1 to 11.1.4 above.
11.2 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.
12 Notice
Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally or sending it by pre-paid first class post (or registered airmail in the case of an address for service outside the United Kingdom) or fax [or email] to the address and for the attention of the relevant party as notified by that party. Any notice shall be deemed to have been received:
12.1 if delivered personally, at the time of delivery; 13.2 in the case of pre-paid first class post, 48 hours from the date of posting;
provided that if deemed receipt occurs before 9 am on a Business Day the notice shall be deemed to have been received at 9 am that day, and if deemed receipt occurs after 5 pm on a Business Day, or on a day that is not a Business Day on the next Business Day. 'Business Day' means any day which is not a Saturday, a Sunday or a public holiday in the place at or to which the notice is left or sent.
13 Waiver
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.
14 Severability
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.
15 Governing law and jurisdiction
The Contract shall be governed by the laws of England and Wales, and the Buyer agrees to submit to the non-exclusive jurisdiction of the courts of England and Wales.
