Sambro International Limited
Terms and Conditions of Sale
1.1. In these conditions:
”the Buyer” means the Person who accepts a quotation of the Seller for the sale of Goods or whose orders for the Goods are accepted by the Seller:
”the Conditions” means the standard terms and conditions of sale set out herein and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller and specified herein or overleaf;
”the Contract” means the contract for the purchase and sale of the Goods;
”the Goods” means the goods (including any instalment of the Goods or any part of them) which the Seller is to supply in accordance with these Conditions and as described on the face hereof;
”Person” means an individual or a body corporate or unincorporated or a partnership and “Persons” and shall be construed accordingly;
”the Seller” means Sambro International Ltd (registered in England under number 2432079);
”the Specified Events” means the events set out in clause 15.6;
”the Terms” means the provision set out in clause 15.5;
“Writing” shall have the ordinary meaning ascribed to it, including type written documents or communications and shall include telex, cable, facsimile transmission and comparable means of communications.
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. Except where the context otherwise requires words herein denoting the singular include the plural and vice versa; words denoting anyone gender include all genders.
1.4. Reference to clauses are, unless the context otherwise permits, reference to clauses of these Conditions.
1.5. Clause headings herein are for reference only and do not affect the construction of these Conditions or the Contract.
2.1. The parties to these Conditions are the Seller and the Buyer. All transactions as between the Seller and the Buyer are as between principal and third party and are subject to the following expressed Conditions.
3.1. The Contract between the Company and the Buyer cannot be varied, altered or excluded unless such variation, alteration or exclusion is agreed between the parties in Writing between the authorised representatives of the Seller and the Buyer (being in the case of the Seller a Director of the Seller) and signed by the parties to be bound.
4.1. Any concession, latitude or waiver allowed by the Seller at any time shall only apply to the extent specifically covered by such concession, latitude or waiver and shall not prevent the Seller Otherwise exercising its full rights under the Contract and these Conditions.
5. Acceptance of Orders
5.1. The contract between the seller and the buyer shall only be come binding upon the confirmation of acceptance in writing of any order by the seller and signed by the sellers duly authorized representative and all quotations and tenders made and price or product lists supplied by the seller shall be treated as invitations to treat only.
5.2. The seller reserves the right to accept or refuse orders. The seller also reserves the right (without being prejudice to any other remedy) to cancel any uncompleted order or to suspend delivery in the event of the buyers commitments including in particular, without limitation, the payment on the due dates for goods delivered) with the seller not being met. The seller reserves the right to refuse, modify or renegotiate orders in the event of changes in the HM Government’s trade policy pertaining to imports, tariffs, surcharges, pound sterling exchange rate fluctuations and other conditions affecting the charges, quotes or procedures the seller is obliged to follow. If an order is cancelled by the seller in the aforementioned circumstances then the buyer shall be liable to indemnify the seller against all loss, costs (including the cost of all labour and materials used and overheads incurred), damages, charges and expenses arising out of the orders and the cancellation thereof (the seller giving credit for the value of any such materials sold or utilized for other purposes)
5.3. 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 and necessary information relating to the goods within a sufficient time to enable the seller to perform the contract in accordance with its terms.
5.4. The quantity quality and description of and any specification for the goods shall be those set out in the seller’s quotation (f accepted by the buyer) or the buyer’s orders (if accepted by the seller).
5.5. 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 in settlement of any claim for infringement or any patent, copyright, design trademark or any other industrial or intellectual property rights of any other person which results from the seller’s use of the buyer’s specification.
5.6. The seller reserves the right to make any changes in the specification of the goods which are required to conform with any applicable safety or other statuary requirements or, where the goods are to be supplied to the seller’s specification, which do not materially affect their quality or performance.
6.1. The seller’s employees or agents are not authorized to make a legally binding representation concerning the goods or this contract and no representations shall bind the seller unless the same shall have been put into writing and signed by a director of the seller.
6.2. In entering into this contract, the buyer acknowledges that it does not rely on and waives any claim for breach of any representations which are not confirmed in writing as provided for in clause 6.1.
6.3. 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.
6.4. All illustrations, drawings and general descriptions accompanying any quotation from the seller of contained in the seller’s price list’s, advertisements or other literature or otherwise provided to the buyer are intended for general guidance only and shall not be binding by the seller and are only approximate indications of the type, size or colour of goods quoted for and sale of such goods shall not be by reference thereto. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance or 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.
7. Carriage and Packaging
7.1. Unless expressly stated in writing by the seller all prices quoted are ex-works and carriage is not included.
7.2. The packaging of the goods is at the sole discretion of the seller who shall have the right to pack the goods in such manner and with such materials as it thinks fit.
8.1. All prices shall be exclusive of Value added tax and any other taxes from time to time in force and shall be such prices as stated by the seller.
8.2. Prices shall be subject to variation at the sole discretion of the seller at the time.
8.3. The price of the goods shall be the seller’s quoted price. 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 , material or other costs of manufacture), any change in delivery dates, quantities or specifications for the goods which is requested by the buyer, or any delay cause by any instructions of the buyer or failure of the buyer to give the seller adequate information or instructions.
9.1. Subject to clause 8.2 the seller will invoice the buyer immediately upon dispatch of ordered goods. Save where otherwise indicated on the invoice in writing the total invoice value must be paid by the buyer to the seller as agreed between the parties.
9.2. Where the goods are to be collected by the buyer or the buyer wrongfully 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 maybe) the seller has rendered delivery of the goods.
9.3. The time for payment of the price shall be of the essence of this contract. Should full payment of the invoices from the buyer not be received by the seller within the required period, the buyer will be liable to the seller for a late payment surcharge in accordance with clause 9.4.3.
9.4. If the buyer fails to make payment on the due date then, without prejudice to any other right or remedy available to the seller, the seller shall be entitled:-
9.4.1. Cancel the contract or suspend any further deliveries to the buyer: and/or
9.4.2. 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/or:
9.4.3. Charge the buyer interest (both before and after any judgment) on the amount unpaid, at the rate of four percent per annum above Barclays Bank PLC base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
10.1. If the recovery of the any sums outstanding from the buyer to the seller is passed to a debt collection agency, the buyer shall pay the sellers costs incurred on an indemnity basis in instructing the said debt collection agency and all legal and other costs ancillary thereto.
11.1. Save where the buyer collects the goods from the seller’s premises (in which case delivery shall take place at the sellers premises) delivery shall take place at the buyer’s premises or such other actual location of which the buyer shall have previously notified the seller in writing.
11.2. the seller will endeavour to complete on any delivery dates stipulated, but such dates are only estimated and the seller but will not be liable for any loss, damage, injury, penalty, claim or any other matter of whatsoever nature arising from any delay in delivery time for delivery shall not be of the essence of the contract.
11.3. The seller shall be entitled to deliver goods by instalments. 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 in anyone or more instalments shall not entitle the buyer to treat the contract as a whole as repudiated.
11.4. The seller reserves the right to withhold delivery of goods to the buyer at any time when the buyer is exceeding or upon delivery would exceed any credit limit with the seller either in relation to such goods specified or otherwise.
11.5. A delivery or collection note signed by or on behalf of goods to the Buyer or of the buyers customer or the duly authorize agent either of them is deemed to be absolute evidence of delivery or collection of the goods specified therein.
12.1. Where the unloading of goods is for any reason delayed the buyer shall indemnify the seller in respect of any loss or damage which it may sustain in consequence thereof.
13. Storage Charges
13.1. 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 the sellers fault) then, without prejudice to any other right or remedy available to the seller. The seller may:-
13.1.1. Store the goods until accurate delivery and charge the buyer for the reasonable costs (including insurance) of storage; or
13.1.2. 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 by the buyer for any shortfall below the price under the contract.
14. Claims and Damages
14.1. The buyer shall upon delivery examine the goods and shall promptly (but in any event within fourteen working days of delivery) notify the seller in writing of any apparent damage, defect or shortage.
14.2. In default of the written notification referred to in clause 14.1 the seller shall be deemed conclusively to have properly performed its obligations under the contract.
14.3. The seller shall not be liable for any loss or damage of whatsoever nature or to whomsoever caused arising out of the use or the supply of the goods supplied by it hereunder notwithstanding that the same may be due to negligence on the part of the sellers employees or agents or to any defect inherent, latent or otherwise which may be or which may subsequently develop in products, goods or materials supplied by the seller or otherwise howsoever arising.
14.4. The seller shall not be liable or help responsible for any damages, costs, charges or expenses awarded against or any liabilities incurred by the buyer arising out of any infringement of any patent belonging to third parties.
14.5. In the event of a claim, settlement will be limited to the value of the goods defectively processed and will I no way extend to consequential loss howsoever caused.
14.6. All goods must be stored by the buyer in suitable conditions and the seller will not be liable to the buyer for any defects brought about by the buyer storing the goods in unsuitable conditions.
14.7. Goods supplied to the buyer may not be returned without the seller’s written consent. The seller reserves the right to refuse goods so returned.
15. Title and Risk
15.1. The risk with goods shall pass to the buyer on delivery and the buyer should insure the goods accordingly.
15.2. Notwithstanding the delivery and passing of risk in the goods or any other provision of these conditions, the legal and beneficial property and title in the goods shall remain in the seller and shall not pass to the buyer until the full purchase price of all the goods comprised in the contract has been paid to the seller either by way of cash or cleared funds.
15.3. So long as the property in the goods remains vested in the seller the buyer shall keep the goods as the sellers fiduciary agent and bailee and shall insofar as may be possible store them in such a way that they are identifiable as the property of the seller and separate from all other goods in the buyers possession.
15.4. The buyer until otherwise notified in writing by the seller or on the happening of any of the specified events may, in the ordinary course of business, sell the goods and pass property in them (“the sale”) subject to the terms.
15.5. The terms are that until all monies owing under the contract have been paid in full by the buyer to the seller.
15.5.1. If any goods to which title is retained by the seller under these conditions are sold or represented to be sold by the buyer then the buyer shall hold the proceeds of the sale on trust absolutely for the seller in a separate bank account from the buyers normal trading accounts shall pay there from to the seller with or without demand by the seller such monies as are necessary to discharge the buyers current liability to the seller.
15.5.2. In the event of a breach by the buyer of its obligations under clause 15.5.1 the seller shall have the right to trace the proceeds of the sale into any other monies with which they may have been mixed and the buyer may indemnify the seller on a full indemnity basis against any loss, damage, costs or expenses incurred in such tracing;
15.5.3. If any goods to which these conditions apply are re-sold by the buyer then title to those goods shall pass to the person buying from the buyer only when the monies are due from that person have been paid to the buyer, in all other cases, title to the goods will remain with the seller , this provision shall also apply to any further persons who may in turn purchase the goods;
15.5.4. Until the re-sale by the buyer the seller shall have the right to reclaim possession of the goods at any time and terminate the buyers right to sell the goods and for the purpose of this clause the seller shall have the right to enter on any premises or land in the ownership or possession of the buyer and remove the goods and the buyer shall indemnify the seller on a full indemnity basis against all loss, damage, costs or expenses so arising including in particular, without limitation, loss, damage costs or expenses in respect of third party claims;
15.5.5. If any goods to which title is retained by the seller are “mixed” with or incorporated into any other property or made into or incorporated into any other form of substance whatsoever by manufacturing or any other process then title to the resulting or final product shall belong to the seller and these provisions shall apply to that resulting or final product and the proceeds of the sale thereof in the same way as they would apply to the original goods supplied by the seller.
15.6. The specified Events : –
15.6.1. The giving of any notice to the buyer that a receiver, manager, administrative receiver or administrator of or over the buyer’s assets or any part thereof or that petition to wind up the buyer is to be or has been presented or that an application for an administration order is to be or has been made or of a notice of a resolution to wind up the buyer;
15.6.2. The buyer commits any act of bankruptcy, becomes insolvent, dies or becomes mentally incapacitated;
15.6.3. The buyer makes any arrangements with its creditors generally;
15.6.4. The buyer becomes insolvent or appears to be unable to pay a debt pursuant to sections 123 or 268 of the insolvency Act 1986.
15.6.5. Any distress or execution is levied on any property or assets of the buyer;
15.6.6. The buyer is unable to pay its debts as they fall due.
15.7. On receipt of written notice from the seller under clause 15.4 or on the happening on any of the specified events, the buyers right to re-sell the goods shall cease and the buyer shall immediately deliver the goods, property in which is then reserved to or vested in the seller to such address as the seller shall specify in default of which, or in the alternative, the seller shall have the right to enter on any premises or land in the ownership or possession f the buyer and remove the goods and the buyer shall indemnify the seller on a full indemnity basis against all loss, damage, costs or expenses so arising including in particular, without limitation, loss damage, costs or expenses in respect of third party claims.
15.8. No provision of these conditions shall prejudice the sellers right to exercise any alternate remedy whatsoever in default of payment by the customer or any other breach of contract.
16.1. Save as herein appears the buyer shall have no right to cancel the whole or any part of the contract and if notwithstanding this clause, the buyer shall purport to cancel the whole or any part of the contract, the seller may, by notice in writing to the buyer, elect to treat the contract as repudiated and the buyer shall thereupon be liable to pay to the seller by way of liquidated damages a sum equal to all the expenses incurred by the seller in connection with the contract including, in particular without limitation, an appropriate amount in respect of administrative overheads, costs and losses of profit.
16.2. The seller’s reasonable estimate or expenses incurred by it on repudiation by the buyer as referred to in clause 16.1 shall be final and binding on the parties.
16.3. If the seller for whatsoever cause is unable to make a delivery of the goods on the delivery date set out in the contract or if the seller is unable to perform any of its other obligations under the contract, the seller may, by notice in writing to the buyer, terminate the contract or suspend the contract without liability for any loss or damage thereby incurred by the buyer.
16.4. In addition to the right to cancel any uncompleted order or to suspend delivery thereof pursuant to clause 5.2, the seller shall have a similar right of cancellation of any uncompleted order or to suspend delivery in respect of any orders where the delivery of such goods would result in the amount of monies outstanding to the seller from the buyer for those goods and for any other goods supplied by the seller, would exceed the sellers credit limit on the buyer, as provided by the sellers insurers.
16.5. If the buyer shall not comply with any of its obligations hereunder or upon the occurrence of any of the specified events, the seller shall have the right to terminate the contract forthwith but without affecting any other claim, right or remedy it may have hereunder against the buyer.
16.6. If the buyer shall have a receiving order in bankruptcy made against it or him or commit any act of bankruptcy or on the death or mental incapacity or insolvency of the buyer or if an order or resolution for winding up the buyer is made or if a receiver or administrator of the buyers assets or undertaking or any part thereof is appointed:-
16.6.1. The seller may at its own option cancel the contract or any contract in relation to future deliveries;
16.6.2. The price of all goods delivered to the buyer to date and all expenses incurred by the seller in performance or part performance of this or any other contract with the buyer and any sums due to it from the buyer on this or any other account shall immediately become due and payable from the buyer to the seller;
16.6.3. The seller has the right to cancel any other contract made with the buyer;
16.6.4. The seller shall have the right, without notice, to enter upon the buyer’s premises and remove any goods and materials which are the property of the seller, all such rights to be without prejudice to the seller’s rights to recover the amount due to the seller for goods delivered to date and any loss sustained.
17. Samples or Displays
17.1. The buyer shall be responsible to pay to the seller for the cost of any samples or displays supplied by the seller to the buyer.
18. Force Majeure
18.1. Insofar as the performance of the contract by the seller may be affected by any strike, any lack of available transport or materials, any restriction, regulation or decree by any local or municipal authority or government department or by any strike, commotion, riot, act of god or for any other cause of reason of whatsoever nature beyond the seller’s control (which shall be construct without euisdem generic rule) the seller may elect at its absolute discretion either:-
18.1.1. To terminate the contract: or
18.1.2. To proceed to perform or continue under the contract within a reasonable time after the termination of such events or circumstances and with such reasonable variation as the circumstances shall prevail.
19.1. It shall be the responsibility of the buyer (and not of the seller) to obtain all consents necessary for the installation and storage of any gods and to satisfy himself that the installation and storage of such goods in accordance with the provision of any relevant by-laws, regulations or statutes.
20.1. Should any of these conditions be found by a court or other competent authority to be void or unenforceable such provision shall be deemed to be deleted from these conditions and the remaining conditions shall continue in full force and effect.
21.1. Save as herein before otherwise provided, any notice required or permitted to be given by the buyer under these conditions shall be in writing, addressed to the seller at its trading address shown on the contract. Any notice required or permitted to be given by the seller to the buyer under these conditions shall be in writing, addressed to the buyer at the address shown for the buyer herein.
22.1. To the extent of any conflict between these conditions and any terms and conditions of the buyer either on the buyers order form or otherwise, the conditions herein contained shall take precedence. The seller shall not be bound by the buyer’s terms and conditions or any of them unless expressly agreed to in writing by a director of the seller.
23. Proper Law
23.1. These conditions and the contract shall be construed according to English law and parties hereto hereby submit to the non-exclusive jurisdiction of the courts of England and Wales.