CONDITIONS OF SALE

1. Definitions: Under the terms and conditions of sale set out below
(a) 'Company' means Brown & Newirth Limited.
(b) 'Buyer' means the corporation firm company institution person or persons to whom a quotation is made or to whom goods are sold by the Company.
(c) 'Conditions' means the terms and conditions set out in this document.
(d) 'Contract' means the contract for the supply of Goods formed by the Company's acceptance (which, however made or communicated shall be deemed made subject to these Conditions) of the Buyer's order.
(e) 'Goods' means products sold by the Company which are the subject of the Buyer's order.
2. General: Any order accepted by the Company whether or not is based on or results from this or any other quotation or tender given by the Company is deemed to incorporate these Conditions. No variation or modification of or substitution for these Conditions (even if included in or referred to in the document placing the order) shall be binding on the Company unless specifically agreed by the Company in writing and for the avoidance of doubt, acceptance by the Company of any order shall not unless the Company specifies in writing to the contrary, constitute the agreement of the Company to any terms or conditions included or referred to in such order.
3. Validity of Quotation: The Company's quotation is not an offer but merely an invitation to the Buyer to make an order for Goods under the terms and conditions of the quotation. The Company reserves the right to revise quoted prices and charges in the event of any change in its costs and/or prevailing conditions between the date of quotation and the date of despatch or in the event of any relevant devaluation or revaluation of any currency. The Company shall be entitled to add to the Contract price any value added tax import tariff or other similar tax which is chargeable in respect of the goods and/or materials used therein as supplied by the Company. All prices quoted by the Company are ex-works, and where the Company has undertaken to provide or arrange carriage from its works to a place specified by the Buyer such carriage shall be charged in addition to the price unless otherwise expressly agreed by the Company in writing.
4. Confirmation of Orders: Orders accepted by the Company may not be cancelled under any circumstances unless agreed in writing by the Company. Cancellation of Goods ordered to the Buyer's own specification will not be accepted. Orders by fax, email or telephone are accepted only at sender's risk and subject to these Conditions.
5. The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
6. Specifications: Where specifications are to be supplied the Buyer shall supply such specifications in reasonable time to enable the Company to complete delivery within the period named. To the extent that the Goods are to be delivered in accordance with a specification supplied by the Buyer, the Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party's intellectual property rights arising out of
or in connection with the Company's use of the specification. This shall survive termination of the Contract.
7. Returned Goods: Goods once despatched may not be returned without the Company's consent in writing. If such consent is not given the Buyer shall be obliged to make payment for the Goods in accordance with these Conditions. In any event where such consent is given a re-stocking charge of 25 per cent of the price of the Goods will be made by the Company and paid by the Buyer. Goods returned must be adequately identified and packed and sent carriage paid and must be received in the same perfect condition as the date of despatch from the Company's warehouse.
8. Conditions and Warranties: The Company warrants that as at the date of despatch the Goods will be free from defects in materials and workmanship and the Company will at its option refund the purchase price of or repair or replace free of charge any Goods which the Buyer claims and the Company's examination confirms are defective provided:
(a) the Buyer makes a full inspection of the Goods immediately upon delivery;
(b) the Buyer notifies the Company within 3 days of delivery of any defects which it discovers or in the case of a latent defect in the Goods, within 3 days of the latent defect becoming apparent;
(c) the Goods have not been adjusted, altered, adapted or repaired by any party other than the Company; and
(d) the Goods are either made available to the Company for inspection or returned to the Company at the Buyer's own expense, as the Company may request.
In no circumstances shall the Company's liability to the Buyer for any breach of the above warranty exceed the price paid for the Goods with respect to which the claim is made.
These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
The Company makes no representation or warranty that use of the Goods does not infringe the rights of any third party and the Company accepts no liability in this regard.
Except as provided for in these Conditions, there are no warranties, express or implied, of merchantability or of fitness for a particular purpose, or of any other kind except as to title. In particular, all conditions and warranties which would otherwise be implied by statute or under the common law are hereby excluded (to the fullest extent permitted).
Subject to the exceptions set out in these Conditions, the Company shall under no circumstances be liable for any third party claim made against the Buyer in respect of the Goods, indirect, special or consequential loss (including loss of anticipated profit or third party claims) howsoever arising either from breach or non-performance of any of its obligations under the Contract or from the supply of or intended use of the Goods, even if the Company has been advised of the possibility of such potential loss.
For the avoidance of doubt, except in the case of contracts which are international supply contracts as defined in section 26 of the Unfair Contract Terms Act 1977, the Company excludes no liability for death or personal injury resulting from the negligence of the Company or the negligence of its employees agents or subcontractors, or for fraud or fraudulent misrepresentation.
The Company's total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation (whether innocent or negligent), or otherwise, shall in no circumstances exceed 200% of the price of the Goods.
The Company reserves the right to deliver in installments at its discretion.
Defect in quality or dimensions in any delivery shall not be a ground for cancellation of the remainder of the order.
The Buyer shall accept the supply of such quantity of the Goods (whether more or less) as reasonably approximates to the stipulated amount of the Buyer's order on a rateable adjustment of the total price.
All Goods must be inspected by the Buyer immediately on delivery. If any Goods are damaged or lost in transit or if (subject to the foregoing) there has been short delivery, the Buyer must endorse the consignment note accordingly and submit a detailed written claim to the carrier within 2 days of delivery (or in the case of loss of Goods, the expected delivery date) of the Goods and supply a copy of such claim to the Company within 3 days of delivery (or expected delivery) of the Goods. The Buyer's signature on the consignment note without any such endorsement shall release the Company from any liability in respect of short delivery and if the Company is the carrier, shall release the carrier from any liability to the Buyer in respect of damage or loss in transit.
9. Delivery: Unless otherwise specified in the quotation delivery shall be deemed to take place when the goods leave the Company's premises. If by reason of the Buyer's default the Goods are not taken up or delivered by the date specified in the Contract the Company may either treat the Contract as repudiated or alternatively store the Goods at the Buyer's risk and expense. Estimates of delivery dates and times are to be regarded as approximate only and the time of delivery is not of the essence. The Company shall not be liable for any loss, injury, damage or expenses (whether direct, indirect or consequential) consequent upon any delay in delivery of goods. Deliveries may be wholly or partially suspended and the time of such suspension added to the Contract in the event of a stoppage, delay or interruption of work in the establishment of either the Company or the Buyer during the delivery period as a result of strikes, lock-outs, trade dispute, breakdown, accident or any cause whatsoever beyond the control of the Company or the Buyer respectively.
10. Risk: Risk shall pass to the Buyer when the Goods are despatched from the Company's premises. The Company shall not be liable for any loss of any kind to the Buyer arising from any damage to the Goods (including, without limitation, loss or damage in transit) occurring after the risk has passed to the Buyer however caused, nor shall any liability of the Buyer to the Company be extinguished or diminished by reason of such loss. It is the responsibility of the Buyer to insure the Goods against all risks from their leaving the Company's premises. Where Goods are sold F.O.B. the responsibility of the Company shall cease immediately when the Goods are placed on board ship and the Company shall be under no obligation to give the Buyer the notice specified in Section 32(3) of the Sale of Goods Acts 1979.
11. Title: Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.
Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company's bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company's property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company;
(e) notify the Company immediately if it becomes subject to any of the insolvency events set out below in this condition; and
(f) give the Company such information relating to the Goods as the Company may require from time to time.
The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer's business at full market value; and
(b) any such sale shall be a sale of the Company's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale.
The Buyer's right to possession of the Goods (and its right to resell the Goods) shall terminate immediately if:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(c) the Buyer encumbers or in any way charges any of the Goods.
The Company shall he entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company to the Buyer.
The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
On termination of the Contract, howsoever caused, the Company's (but not the Buyer's) rights contained in this condition 10 shall remain in effect.
12. Payment: Liability for payment for goods supplied shall arise on delivery and such payments shall be due not later than the last day of the month following invoice date unless specifically agreed otherwise between the Buyer and the Company. The Buyer shall make payment for the Goods on or before the due date in pounds sterling and shall not purport to set-off or withhold any payment claimed or due to the Company. Any discounts specified on the Company's quotations shall relate only to payments received in accordance with the terms specifically agreed between the Buyer and the Company. If payment is not made when due the Company may, without prejudice to its other rights, charge interest on overdue accounts at a rate of 2 per cent per annum above the Bank of England minimum lending rate to be calculated on a day to day basis on the balance outstanding until payment is made in full. If payment is not made on the due date or the Buyer is in default as regards payment under this or any other contract with the Company the Company reserves the right to:
(a) to suspend deliveries under this or any other contract for as long as the default continues; and
(b) to serve notice on the Buyer that if sums due under this Contract or any other contract are not paid within four days it will cancel this Contract or any other contract and if payment be not made in that time the Company may by further notice treat this Contract or any other contract as repudiated and determined whereupon all goods in the possession of the Buyer which are owned by the Company shall forthwith be re-delivered to the Company at the Buyer's risk and expense. After the service of the first notice the Buyer shall neither submit the Goods delivered to any process of manufacture nor incorporate them nor mix them with other goods nor change their nature in any way whatsoever, nor shall the Buyer sell goods which have been so manufactured to a third party nor shall the Buyer sell any goods delivered by the Company which are still the property of the Company to a third party until all monies due to the Company are paid.
13. Right to Terminate: The Company may, by notice in writing to the Buyer, without prejudice to any other rights, forthwith suspend or cancel any uncompleted part of any Contract or stop any Goods in transit or require in advance or satisfactory security for further deliveries under any contract should the Buyer:
(a) default on any payment;
(b) be in breach of its obligations to the Company under this Contract or any other contract with the Company;
(c) have a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or
amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer;
(d) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(e) the Buyer encumbers or in any way charges any of the Goods.
14. Errors: Clerical errors and omissions are subject to correction without notice.
15. The failure of the Company to insist upon the strict performance of any of these conditions shall not be construed as a waiver of any such condition and shall in no way effect the Company's right to enforce such provision at a later date.
16. The Company shall not be liable to the Buyer for any loss or damage caused to or suffered by the Buyer as a direct or indirect result of the supply of the Goods by the Company being prevented, restricted, hindered or delayed by reason of any circumstances outside the control of the Company including, without limitation, circumstances affecting the provision of all or any part of the Goods by the Company's usual source of supply or, where appropriate, the Company's usual source of delivery or by the Company's normal route or means of delivery.
17. Governing Law: Any contract subsisting between the Company and the Buyer shall be construed in all respects in accordance with the Laws of England and unless otherwise arranged is subject to the jurisdiction of the English Courts.
18. If any of the terms and conditions of the Contract (or part thereof) shall be found to be invalid, ineffective or unenforceable, the invalidity, ineffectiveness or unenforceability of such term or condition (or part thereof) shall not affect any other term or condition (or the other part of the term or condition of which such invalid, ineffective or unenforceable part forms part) and all terms and conditions (or parts thereof) not affected by such invalidity, ineffectiveness or unenforceability shall remain in full force and effect.
19. Assignment and subcontracting: The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
20. Third party rights: A person who is not a party to the Contract shall not have any rights under or in connection with it.
21. Variation: Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Company.
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