OQEMA Whyte– GENERAL CONDITIONS OF SALES AND PURCHASE
SALES – PDF version click this link
STANDARD CONDITIONS OF SALE
IN THESE Conditions `the Seller’ means the company stated overleaf, `the Buyer’ means the person, firm or Company purchasing `the Goods’ means the goods or materials which shall be the subject of the contract between the Seller and the Buyer `the Price’ means the price specified in the Seller’s Quotation, Acknowledgement or otherwise communicated to the Buyer and agreed.
1. ACCEPTANCE OF ORDER.
All orders are accepted by the Seller subject to these Conditions of Sale unless otherwise varied by agreement in writing. Contracts for delivery by instalments shall be deemed to be divisible.
2. THE PRICE
(i)The Seller may at any time before delivery increase the price of the undelivered balance of the goods by notice in writing to the Buyer, in such event, the Buyer may within seven days of receipt of such notice by notice in writing cancel the order so far as the undelivered balance of the Goods concerned.
(ii)Unless otherwise stated on acceptance, the price of the Goods shall include the Sellers costs of standard packing, normal insurance and delivery of the Goods to any one address in the United Kingdom specified in writing by the Buyer to and agreed by the Seller prior to delivery.
(iii)Containers and/or packages are not returnable unless stated in the
Seller’s Quotation, Acknowledgement, or other documentation. Returnable containers and/or packages shall be returned empty by the Buyer to the Seller’s address stated on the delivery note in good condition, carriage paid, within three months of delivery of the Goods. If not, such containers and/or packages will be chargeable at replacement value and no credit will be due on containers and/or packages for which a charge shall have been made by the Seller.
(i)Unless otherwise stated on the Seller’s invoice agreed in writing payment for the goods shall be made not later than twenty days after the end of the month of invoicing but so that the Seller may at anytime on or after acceptance by notice in writing to the Buyer vary the terms of payment by demanding immediate payment or (at the Seller’s option) adequate security for sums which will be due hereunder.
(ii)Time of payment shall be of the essence and failure by the Buyer to pay the price or any instalment thereof in due time shall entitle the Seller to treat such failure as a repudiation of the whole Contract by the buyer and to require the Buyer to make immediate payment of all monies due or to become due and to recover from the Buyer damages for such breach of contract and/or (at the Seller’s option) to charge interest at either eight per centum per annum or two per centum above the Base Rate of National Westminster Bank Ltd. whichever shall be the greater, from the due date until payment.
(iii) Non payment of any invoice shall be considered a fundamental breach by the Purchaser entitling us to suspend any further delivery or to consider the contract terminated immediately by reason of the Purchaser’s default. Late payment fees are due automatically, without the necessity of a reminder and without prejudice to any other damages, from the day following the date or the end of the period for payment indicated on the invoice or fixed in the contract. The interest rate applied will be plus 6 percent (6%). In addition, as compensation for recovery costs and pursuant to the relevant European Directive on combating late payment in commercial transactions, a fixed sum as well as any additional costs of the recovery of the original invoice (to the extent reasonably incurred), shall be payable. In the event there has been a substantial reduction of the solvency ratio of the Purchaser, we reserve the right to require payment guarantees from the Purchaser or, as an alternative, to terminate any outstanding orders.
Unless otherwise agreed in writing between the Seller and the Buyer the following provisions shall apply.(i) Delivery of the Goods shall take place when the Goods shall be delivered at the address specified on the Seller’s Quotation, Acknowledgement or other documentation. (ii)The delivery date or dates specified on the Seller’s acceptance of order are estimates only. The Seller shall not be liable for failure to deliver by such date or dates or for any damage or loss arising directly or indirectly out of delay in delivery, nor shall the Buyer be entitled to refuse to accept the Goods because of late delivery.
(iii)The risk of any loss or damage to or deterioration of the Goods shall be borne by the Buyer from the time delivery has taken place as in (i) above.(iv) In respect of Sea Transit the Seller shall not be required to give the Buyer the notice relating to Insurance of the Goods referred to in Section 32(3) of the Sale of Goods Act 1979.
Notwithstanding delivery and the passing of risk and solely for the purposes of securing payment of all monies due or to become due to the Seller by the Buyer on any account in the event of the Buyer entering into liquidation or having a winding up order made against it or a receiver or receiver and manager being appointed of its assets or income or any part thereof or in the event of the Buyer being an individual or individuals he or either of them committing any act of bankruptcy or having any bankruptcy petition presented against him or either of them:
(i)The property in the Goods shall remain in the Seller until payment in full has been made to the Seller by the Buyer for the Goods and all other sums due to the Seller at the date of delivery of the Goods.
(ii)Where full payment has not been made to the Seller and the Buyer uses the Goods in his manufacturing process or incorporates the goods with other products the property in the Goods shall be retained by the Seller in so far as such Goods are identifiable.
(iii)Until such payment is made the Buyer shall hold all Goods and materials the property in which is vested in the Seller on a fiduciary basis and in any of the events specified above the Buyer shall store the Goods and materials so as to be clearly identifiable as the property of the Seller.
The Seller shall in respect of all unpaid debts due from the Buyer under the same or any other contract have a general lien on all goods and property of the Buyer in its possession (although such goods or some of them may have paid for) and shall after the expiration of fourteen days written notice to the Buyer be entitled to dispose of such Goods and property as it deems fit and apply the proceeds towards such debts.
7. SHORTAGES AND DAMAGES and/or LOSS IN TRANSIT.
(i)Unless otherwise agreed in writing between the Buyer and Seller the Seller may deliver against any order an excess and/or deficiency up to ten per cent of weight or volume ordered without any liability whatsoever to the Buyer save that the price shall be adjusted accordingly.
(ii)The Buyer shall inspect the goods immediately upon delivery and shall within three days of such delivery (time being of the essence) give notice in writing to the seller and the carrier of all claims on account of damage to or total or partial loss of Goods in transit. Claims for non-delivery must be submitted in writing to the seller within fourteen days after notification of despatch. Quality claims must be made in writing immediately after the Buyer learns of the defect and in any event not later than sixty days after the Buyer’s receipts of the Goods. Any claim not made in writing and received by the Seller within the aforesaid time limits shall be deemed waived
(iii)If the Seller fails to make delivery or makes defective delivery of any one instalment such failure or defective delivery shall not vitiate the contract as regards other instalments.
(iv)The right of the Buyer to set off the value of any shortage, defective Goods or Goods not otherwise conforming to contract shall be restricted to the specific invoice for the Goods in question and shall not apply to previous or future accounts.
8. WARRANTY AND LIMITATION OF LIABILITY.
The Seller warrants that the Goods are produced within the accepted tolerance levels in accordance with the standard specifications stated in the Sellers official literature on the Goods current at the relevant time. Save as aforesaid, all other conditions, guarantees or warranties whether expressed or implied by statute, common-law or otherwise including (but without prejudice to the generality of the foregoing) conditions, guarantees or warranties as to quality, fitness for purpose or description of the Goods or their life or wear or use under any conditions whether known or made known to the Seller or not are hereby excluded. The Seller’s liability for any and all direct loss or damage resulting to the Buyer from defects in the Goods or any other cause shall be limited to the purchase price of the quantity of the Goods in respect of or in relation to which such loss or damage is claimed. Subject as aforesaid the Seller shall be under no liability in contract or in tort for any loss or damage or personal injury arising directly or indirectly out of the supply or use of the Goods or containers other than death or personal injury resulting from the negligence of the Seller within the meaning of Section 1 of the Unfair Contract Terms Act 1977.
9. FORCE MAJEURE.
Deliveries may be partially or totally suspended by either party during any period in which it is prevented from manufacturing delivery of the Goods through any circumstances outside its control. If, because of such circumstances the Seller is unable to supply the total requirement of the Goods the Seller may allocate its available supply (after satisfaction of its own requirements) among all of its customers, including those not under contract as the Seller thinks fit. Deliveries so suspended shall be cancelled without liability, but the contract between the parties shall otherwise remain unaffected.
The Buyer shall indemnify the Seller in respect of all damage or injury occurring to any person, firm company or property and against all actions, suits, claims and demands, charges or expenses in connection therewith for which the Seller may become liable in respect of the Goods sold under the contract in the event that the damage or injury shall have been occasioned otherwise than by the negligence of the Seller.
The Seller reserves the right (without prejudice to its other rights and remedies) either to terminate the contract between the parties or to suspend further deliveries under it or require payment in advance in the event that the Buyer fails to pay for any one delivery when the same becomes due or the Buyer’s financial responsibility becomes unsatisfactory to the Seller or if the Buyer, being a company goes into liquidation or has a receiver appointed or not being a company has a receiving order made against him or enters into any arrangement or composition with creditors.
All import duties, VAT and other imposts will be for the Buyer’s account.
13. PATENTS AND TRADEMARKS.
No representation, warranty or indemnity is given by the Seller that the Goods do not infringe any letters patent, trade marks, registered designs or other industrial rights.
The contract of which these Conditions form part is personal to the Buyer who shall not assign the benefit thereof without the Seller’s consent.
15. PROPER LAW.
These conditions and the contract between the parties shall be construed and applied in accordance with the Law of England and the English Courts shall have sole jurisdiction in any dispute relating hereto.
PURCHASE – PDF Download version click this link
1. EXTENT OF CONTRACT OF GOODS, ETC.
The contract entered into between The Whyte Group of Companies (thereinafter called “The Buyer”) and the person, firm or company to whom the Purchase Order is addressed (thereinafter called “The Seller”) is for the sale and delivery of the items
or services which are the subject of this Purchase Order and specified or
described herein and in any specification referred to herein (thereinafter called
“the Goods”) and includes the supply. protection, painting, marking and
delivery of the Goods.
In the event of any conflict between these General Conditions and the provision on the face of the Purchase Order, the latter shall prevail
2. ACCEPTANCE OF CONDITIONS
This document sets forth the entire agreement between the Buyer and Seller. No conditions or terms contained in the quotations, offers, acknowledgements,
or other communications of the seller shall annul or vary any of these General Conditions and the instructions contained in the Purchase Order unless expressly agreed by both parties in writing.
The Seller assumes all warranties which are provided by law, and in addition, expressly warrants that the Goods conform to the description and specifications referred to in the Purchase Order.
The Seller warrants that the design manufacture quality, packing and labeling of the Goods shall comply in all respects with all relevant requirements of any Statute, Statutory Rule or Order or other instrument having the force of law,
Which way be in force at the time when the Goods are supplied.
The Buyer may by written notice to the Seller reject any of the Goods which fail to meet the requirements of the Purchase Order. Such notice shall be given within a reasonable time after delivery to the Buyer of the Goods concerned.
It is the responsibility of the Seller to provide relevant Product and Health,
Safety & environmental information for all Goods and services.
Without prejudice to any other rights and remedies of the Buyer, the Seller shall indemnify the Buyer against all claims, damages, losses, costs and expenses which may result directly or indirectly from any defect in the Goods
Strict compliance with the time and place of delivery set out in the Purchase Order shall be of essence to the contract. All Goods must be delivered carriage paid unless otherwise agreed.
The Seller shall be responsible for satisfying itself that any tank car, or other bulk container is clean and suitable prior to loading.
The property in the Goods shall pass on payment of the price invoiced for the Goods, or on delivery, whichever first occurs.
Notwithstanding the previous sentence, the Goods will remain at the Sellers risk until delivery is effected as provided in the Purchase Order.
In effecting delivery of the Goods to the Buyer’s premises the Seller shall comply with the Buyer’s safety regulations
Unless otherwise specifically agreed between the parties all packages containers, pallets, crates etc. will be supplied at no additional cost to the Buyer and will be non-returnable
6. PROGRESS CHECKS INSPECTIONS AND TESTS
The Buyer shall be entitled on giving reasonable notice to check progress on the execution of the Purchase Order, to inspect the Goods and any work thereon during manufacture and before delivery
The Seller shall afford the Buyer’s representative every facility for such purposes, including access to the Sellers (or sub-contractors) works at all reasonable times
Any such inspection shall not in any way relieve the Seller from any of its obligations under the Contract.
7. MARKING AND PACKING
The Goods shall be packed and marked in a proper manner and in accordance with the Buyer’s instructions and the requirements of the carriers.
All containers of hazardous Goods (and all documents relating thereto) shall bear prominent and suitable warning. Any loss or damage arising from failure to observe these conditions will be charged to the Seller.
8. WEIGHT AND VOLUME
Any weighing or measuring of the Goods by the Buyer upon delivery shall be conclusive of the weight or measurement of the Goods so delivered
In the event of a dispute, the Seller shall be given reasonable facilities for verifying the accuracy of theBuyer’s weighing and measuring equipment.
Goods delivered which are not in accordance with the Purchase Order may without prejudice to any claim the Buyer may have against the Seller in respect thereof be returned by the Buyer at the Seller’s expense
9. LOSS OR DAMAGE IN TRANSIT
Subject to any variation in delivery terms (paragraph 5), the Seller shall free of charge and promptly either repair or replace such of the Goods as may either be damaged in transit or having been placed in transit not been delivered to the Buyer.
In the case of damage to the Goods in transit, the Buyer shall within 14 days of delivery notify the Seller that the Goods have been damaged
The price stated on this Purchase Order is fixed. No increase or extra charges submitted in respect of this Purchase Order will be accepted without the specific authority of the Buyer.
In the event that the Seller recovers a refund of or credit for taxes paid by the Buyer to the Seller in connection with this Purchase Order the Seller agrees to pay.
11. PATENT RIGHTS
The Seller shall fully indemnify the Buyer against all actions, claims, demands liabilities, damages, losses, costs and expenses concerning infringement or alleged infringement of any patent registered design, trade mark, and service mark, copyright
or similar protection which arise from anything done by or for the Seller in relation to the Goods supplied under the contract or any use recommended by the Seller or resale by the Buyer of such Goods
12. FORCE MAJEURE
Neither party shall be liable to the other if by reason of any cause which is either beyond the reasonable control or could not have been reasonably prevented by either party, the Buyer is prevented from or delayed or hindered in taking delivery,
or the Seller is prevented from or delayed or hindered in making delivery of the Goods or any part thereof at the times stated for delivery. If for any such cause, the Seller is prevented from or delayed or hindered
in making delivery, the Buyer shall be entitled to purchase the whole or any part of the Goods elsewhere
Without prejudice to any other rights and remedies of the Buyer under the contract the Buyer may terminate the contract forthwith by written notice to the Seller if the Seller shall become insolvent, or commits any other acts of bankruptcy
or if the Seller shall be in breach of any of the terms and conditions hereof.
The Seller shall not assign or sub-let the contract or any rights or obligations thereunder without the previous consent in writing of the Buyer.
15. NON WAIVER
No waiver by either party of any breach of any of the terms and conditions hereincontained to be performed by the other party shall be construed as a waiver of any,subsequent breach, whether of the same or of any other term or condition hereof.
The rights and remedies of the Buyer set forth in these General Conditions are not exclusive and are in addition to all other rights and remedies provided by law.
17. PROPER LAW
The construction, validity and performance of the Contract shall be governed by the Law of England.