CONDITIONS OF CONTRACT governing all contracts for the sale of goods by Plastics for Games Ltd (“the Company”)
In these conditions “Buyer” means any person at whose request goods are supplied by the Company: and “goods” means any goods or replacements therefore supplied to the Buyer under the contract of sale. These Conditions shall apply to every contract entered into with the Company except as varied by express agreement in writing signed by a director of the Company. The headings are for convenience only and shall not effect construction of these Conditions.
1 FORMATION AND PARTIES
(a) The Buyer’s order to the Company is an offer to enter into a contract upon these Conditions. Any terms or conditions proffered at anytime by the Buyer are hereby excluded. A quotation by the Company does not constitute an offer.
(b) The Buyer shall not assign the benefit of the contract without the Company’s prior written consent.
(c) The contract is not cancellable by the Buyer without express written consent of a director of the Company.
(d) If the Company agrees cancellation by the Buyer, the Buyer shall indemnify the Company in full against all expenses incurred up to the time of cancellation and forthwith pay to the Company 5% of the contract price by way of liquidated damages.
(a) The prices quoted are exclusive of Value Added Tax. Except where stated by the Company to the contrary the price includes standard packing and excludes delivery. The cost of delivery and any additional packaging required by the Buyer shall be charged in addition to the price.
(b) The Company reserves the right to vary the price of the goods by any amount attributable to a suspension of or alteration to work by reason of a change in the Buyer’s instructions or a lack of instructions or any variation in the cost of materials, labour, transport, duties, taxes, exchange rates or any costs of whatsoever nature between the date of the contract and the date of delivery or completion of payment.
(a) Delivery dates are estimates only and time of delivery is not of the essence of the contract. The Company shall use its reasonable endeavours to deliver the goods by the stated delivery date, but may suspend or delay delivery and shall not be liabIe for any loss whatsoever in the event of late delivery or non delivery of goods or any installment owing to any occurrence whatsoever beyond its control. The Buyer shall not be entitled to refuse to accept late delivery or treat late delivery as a breach of contract.
(b) The Company may at its option deliver by installments, and each installment shall constitute a separate contract on these Conditions.
(c) Delivery shall take place and risk shall pass upon the earliest of the following:
(i) the Company handing the goods to the Buyer or its agent at the Company’s premises, or
(ii) the goods leaving the Company’s premises, or
(iii) the expiry of (in the case of inland orders) the eighth day or (in the case of export orders) the fifteenth day after notification by the Company to the Buyer that the goods are available for collection either at the Companies premises or, where the goods are situated elsewhere, at such place.
(iv) Unless otherwise agreed all export orders will be delivered f.o.b. at a British port to be notified by the Company.
(v) If the Buyer shall fail to collect the goods by the expiry of the eighth day following notification as provided for in paragraph 3c(iii) above, the Company shall be at liberty to treat the contract as repudiated by the Buyer. Until the contract is so terminated the Company may at its option, either store the goods itself or have them stored by third parties on such terms as it in its absolute discretion thinks fit. The cost of storage and any additional transportation will be added to and form part of the price. If the Company elect to treat the contact as repudiated in accordance with this Condition it shall (without prejudice to its rights and remedies against the Buyer in respect of such repudiation) be at liberty to sell the goods and retain the proceeds thereof.
4 LOSS OR DAMAGE IN TRANSIT
The Buyer shall notify the Company and the carrier in writing of loss or damage to the goods in transit within 7 days after despatch.
(a) The Buyer shall inspect the goods immediately upon delivery and shall (unless such inspection cannot be carried out and the delivery note is marked “not examined”) subject to paragraph (b) below be deemed to have accepted the goods as delivered.
(b) The Company shall not be liable to defects or shortages discoverable on reasonable inspection unless the Buyer notifies the Company before expiry of 7 days after delivery of any alleged defect or lack of conformity with the contract.
(c) The Company shall make good shortages (in excess of the permitted margin) notified to it under para 5(b) as soon as reasonably practicable but shall not be liable to any other loss whatsoever arising from such shortage.
(d) The Company’s liability for goods lost or damaged in transit shall in all circumstances be limited to (at the Company’s option) repair or replacement or crediting the Buyer with the invoice value of the goods in question.
(a) If within seven days after delivery a material defect in the goods shall be discovered and
(i) the Buyer notifies the Company within fourteen days after discovery giving particulars and at its own expense returns the goods to the Company, and
(ii) such defect has arisen from faulty materials employed or workmanship carried out by the Company existing but not discoverable upon inspection at the time of delivery, then the Company shall supply replacements or, at its option, credit the Buyers account with the Company or refund to the Buyer the purchase price paid for (and cost of returning) the defective goods.
(b) The Company’s liability for defective goods is limited in all circumstances to (at the Company’s option) delivery of replacements or crediting or refunding of the invoice value to the Buyer and the Buyer shall accept such of the aforementioned remedies as the Company shall proffer as being fulfilment of the Company’s obligations under the contract. These Conditions shall apply mutatis mutandis to any replacement goods supplied by the Company.
(c) The Company’s liability under this Condition applies only to defects appearing before the Buyer makes any modification or alteration to the goods and whilst the goods are being properly used and stored and in particular (but without limitation) the Company shall not be liable in the case of defects arising from normal deterioration or improper or faulty handling or processing by the Buyer.
7 ITEMS SUPPLIED BY BUYER
(a) The Buyer shall be liable for all drawings specifications and instructions issued to the Company with orders or pursuant of the contract and shall indemnify and keep indemnified the Company against all loss directly or indirectly arising out of any error in or omission from such drawings, specifications and instructions, and all costs claims demands and expenses whatsoever in respect of the infringement or potential infringement of any patent, copyright, registered design or other third party right arising out of the Company’s use of such drawings, specifications and instructions.
(b) All moulds, tools,dies and jigs, materials and finished goods that are the property of the Buyer, or supplied by the Buyer on behalf of a third party, shall be held on the Companies premises at the sole risk of the Buyer.
8 LIMITS OF LIABILITY
(a) The goods are supplied strictly on the terms that the Buyer has satisfied itself of their suitability for its purposes. The Buyer acknowledges that all specifications and details in catalogues, quotations and acknowledgments of orders or similar documents or by word of mouth and all forecasts of performance howsoever given are approximate only and do not form part of the contract and that in respect of such specifications details and forecasts the Company shall be under no liability nor shall the Buyer be entitled to any remedy under the provisions of the Misrepresentation Act 1967.
(b) The Company’s liability under Conditions 5 & 6 shall be accepted by the Buyer in Lieu of any warranty or condition, whether express or implied by law, as to the quality or fitness for any particular purpose of the goods and save as provided in these Conditions the Company shall not be under a liability to the Buyer (whether in contract, tort or otherwise) for any defects in the goods, materials supplied or workmanship performed by the Company or for any damage, loss, death or injury resulting from such defects and the Buyer shall indemnify the Company against any claims in respect thereof. For the purposes of this paragraph the Company contracts on its own behalf and on behalf of and as trustee for its sub-contractors, servants and agents.
(c) The Company shall not be liable, whether by way of indemnity or by reason of breach of contract, tort or breach of statutory duty or in any other manner for consequential or indirect loss at whatsoever nature suffered by the Buyer or for special damages, loss of use (whether complete or partial) of the goods, or loss of profit or at any contract.
(d) Nothing in this Condition shall be construed as limiting or excluding the Company’s liability for death or personal injury resulting from its negligence (as defined in section 1 of the Unfair Contract Terms Act 1977).
9 RETENTION OF TITLE
(1) Until the Company has received payment in full of all sums owed to it on any account by the Buyer (whether arising out of this or any other contract):
(a) title to the goods shall remain in the Company, and
(b) the goods shall be at the Buyer’s risk and the Buyer shall from the date of delivery at its own expense effect insurance of the goods for their full replacement value against all usual risks, and
(c) the Buyer shall take due care of the goods and store them separately and clearly identifiable as the Companies property and shall not remove, alter or deface identification marks on the goods or (if supplied In prepacked form) on the packaging of the goods, and
(d) subject to paragraphs (e) and (f) below the Buyer may use and otherwise deal with and in its own name (but not on behalf of the Company) sell the goods in the ordinary course of business on the basis that the proceeds of the sale shall belong to the Company and
(e) the Buyer shall hold the proceeds of sale of goods sold pursuant to the power of sale in paragraph (d) above on trust for the Company absolutely and shall not pay them into an overdrawn bank account nor allow such proceeds to be withdrawn or charged and shall keep them at all times identifiable as the Companies monies, and
(f) sales of the goods pursuant to this Condition shall be at their full market value and in the case of goods which have been processed by the Buyer or combined with other goods not the property of the Company the Buyer shall hold on trust for the Company that proportion of the proceeds of sale as is attributable to the Company’s goods, and
(g) the Company may at any time by notice to the Buyer revoke or suspend the Buyer’s power of sale and use:
(i) if the Buyer is in default for longer than 14 days in the payment of any sum whatsoever due to the Company, or
(ii) if any negotiable instrument drawn by the Buyer in favour of the Company is dishonoured on presentation for payment, or
(iii) if the Company has reasonable doubts as to the ability or willingness of the Buyer to pay any sum to it on the due date, and
(h) the Buyer’s power of sale and use shall automatically determine if the Buyer becomes insolvent or commits any act of bankruptcy or causes a meeting of or makes any arrangement or composition with creditors or has an Administrator appointed over any of its assets or undertaking or a winding up order is made against it or goes into voluntary liquidation or if there is presented a petition for its winding up (otherwise than for a bonafide reconstruction or amalgamation) or for the appointment of an Administrator or Administrative Receiver, and
(i) the Company may at any time on giving prior notice enter the Buyer’s premises for the purpose of inspecting the goods and identifying them as the Company’s property and the Buyer irrevocably authorises the Company to enter upon its premises for that purpose, and
(j) notwithstanding that in exercise of its right to use the goods, the Buyer may attach or incorporate the goods in other goods, the resulting product (“the Product”) shall belong legally and beneficially to the Company, and to any other owner whose goods have been incorporated in the Product, in common. The Company may require the Product to be sold in order to recoup the monies owed to it and the Buyer shall hold all proceeds on trust for the Company and the other owner(s) proportionally to the value of their respective goods incorporated in the Product. The forgoing provisions of this Condition shall be construed as applying to the Products in the same manner as to the goods title to which has not passed.
(2) Upon suspension revocation or determination of the Buyers power of sale and use under this Condition the Buyer shall place all goods in its possession or under its control at the Company’s disposal and shall irrevocably authorise the Company to enter upon any of the Buyer’s premises, with or without vehicles, for the purposes of removing such goods.
(3) The repossession of goods by the Company in accordance with this Condition shall be without prejudice to all or any of the Company’s other rights against the Buyer under the contract.
(a) Subject to satisfactory trade, bankers and other requisite references and, where no other forms of payment have been specifically agreed in writing, the Company’s terms are cash payment in full to be made within 30 days after delivery. For moulds, tools, dies and jigs the Company’s terms are cash payment in full to be made within 7 days after date of invoice. No discount or allowance will be made unless specifically stated by the Company in writing. Interest will be charged on all sums due under or by way of damages for breach of the contract at the rate of 5% per annum above the base rate of Barclays Bank PLC from time to time in force and shall be calculated and accrue on a day to day basis from the date of which payment fell due until payment (whether made before or after judgement has been obtained by the Company against the Buyer).
(b) Time for making payment shall be the essence of the contract.
(c) The Company may at any time in its absolute discretion appropriate any payment made by the Buyer in respect of goods to such outstanding debt as the Company thinks fit, notwithstanding and purported appropriation to the contrary by the Buyer.
(d) The Company shall be entitled to cancel the contract or to postpone any delivery until payment has been received in the event that the Company has reasonable doubts about the Buyers ability or willingness to pay on the due date.
(e) The Company reserves the right at any time at its discretion to demand security for payment before continuing with an order or delivering goods or any instalment.
(f) VAT will be charged at the rate ruling at the time of despatch of the goods or, if different, the basic tax point (as defined in regulations governing VAT from time to time in force).
11 FORCE MAJEURE
(a) The Company shall not be liable to the Buyer if unable to carry out any provision of the contract for any reason beyond its control including (but without limitation) Act of God, legislation, war, civil commotion, fire, flood, drought, failure of power supply, lockout, strike, stoppage or other action by employees or third parties in contemplation or furtherance of any dispute or owing to any inability to procure parts or materials required for the performance of the contract.
(b) The Company shall notify the Buyer as soon as reasonably practicable after circumstances preventing performance arise. During the continuance of such contingence the Company may, within its absolute discretion, withhold, reduce or suspend performance of its contractual obligations so far as prevented or hindered by such contingency without liability to the Buyer for any loss or damage whatsoever suffered directly or indirectly by reason of any such withholding, reduction or suspension.
(c) Should such contingency continue for more than three months either party may (subject to the Company repaying to the Buyer any advance payments made for undelivered goods and the Buyer paying for goods delivered) cancel the contract without further liability to the other.
12 NO WAIVER
No waiver of any of the Company’s rights under the contract shall be effective unless in writing signed by a Director of the Company. A waiver shall apply only to the specific circumstances in which it is given and shall be without prejudice to the enforcement of a Company’s rights in relation to different circumstances or the recurrence of similar circumstances.
Any notice under these Conditions shall be properly given if in writing and sent by first class post, email or facsimile to the address of the intended recipient as stated in the contract or to such address as the Company and the Buyer from time to time notify to each other as their respective addresses for service and shall be deemed served in the case of postal notice, on the expiry of 48 hours from time of posting, in the case of email or facsimile, on the expiry of 15 minutes from completion of transmission by the sender.
14 CONSTRUCTION AND JURISDICTION
(a) English Law shall govern construction and operation of the Contract and the Buyer agrees to submit to the non-exclusive jurisdiction of the English Courts.
(b) Each of these Conditions and each paragraph hereof shall be construed as a separate Condition. Should any provision hereof be found to be invalid or unenforceable or an unreasonable restriction of the Company’s liability then such provision shall apply with such modification as maybe necessary to make it valid and effective.