Brodie & Stone

TERMS AND CONDITIONS OF SALE

INTERPRETATION
1. In these conditions:-
  `CONTRACT` means the contract for the sale and purchase of the Goods; `BUYER` means the company who accepts the Seller’s written quotation for the sale of the godds or whose written order for the Goods is accepted by the Seller;
  `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:
  `PRICE` means the price of the Goods;
  `SELLER` means the company within Brodie & Stone PLC Group stated in the written quotation or acceptance of the Buyer’s written order;
  `INCOTERMS` means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made;
  `CONDITIONS` means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special term and conditions agreed in writing between Buyer and the Seller;
2. A reference in these Conditions to a provision of a statute shall be construed as a reference to that provisions as amended, re-enacted or extended at the relevant time.
3. The headings in these Conditions are for convenience only and shall not affect their interpretation.
BASIS OF SALE
1. The Seller shall sell and the Buyer shall purchase the Goods subject to these Conditions.
2. These Conditions shall apply to the Contract to the exclusion of any other terms including any subject to which any quotation of the Seller may have been accepted or purported to have been accepted, or any order of the Buyer may have been made or purported to have been made, by the Buyer.
3. No variation to these Conditions shall be binding unless agreed in writing between the authorise representatives of the Buyer and the Seller.
4. The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed in writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representatives which are not so confirmed, buy nothing in these Conditions affect the liability of either party for fraudulent misrepresentation.
5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document issued by the Seller shall be subject to correction without any liability on the part of the Seller.
ORDERS
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.
2. The quantity, quality and description of the Goods shall be as set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
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.
DELIVERY
1. The Seller shall deliver the Goods ex works at its factory, unless otherwise agreed.
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. The Goods may be delivered by the Seller in advance of the quoted delivery date on giving reasonable notice to the Buyer.
3. The Seller reserves the right to deliver the Goods in 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 of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
4. The Seller may charge additional storage, carriage and insurance costs if the Buyer does not accept deliver.
5. Shortages are to be notified by the Buyer to the Seller within seven days of delivery, and the Seller shall not be liable for any shortages not so notified.
PRICE AND PAYMENT
1. The price shall be as stated in the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), that listed in the Seller’s price list current at the date of acceptance of, and applicable to, the order. All Prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
2. The Price, unless otherwise so stated, shall be:
  (a) Exclusive of any applicable value added tax (which shall be payable by the Buyer subject to receipt of a VAT invoice); and
  
  (b) Unless and to the extent otherwise agreed in writing between the Buyer and the Seller (including by the agreed use of an appropriate Incoterm), exclusive of transport, packaging and insurance, which the Seller may charge the Buyer in addition.
3. Subject to any written agreement otherwise, the Seller may invoice the Buyer for the Price on or at any time after deliver.
4. The Seller reserves the right, by giving written notice tot eh Buyer at any time before delivery, to increase the Price to reflect any increase in the cost to the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates or quantities for the Goods which is requested by the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
5. The Buyer shall pay the Price (without any set-off or deduction) within the terms and conditions set out by the Seller, and the Seller shall be entitled to recover the Price, notwithstanding that the property in the Goods has not passed to the Buyer.
6. If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may cancel the Contract or suspend any further deliveries to the Buyer, and/or charge the Buyer interest (both before and after any judgement) on the amount unpaid until payment in full is made at either of the following rates (at the Seller’s option): (i) 4 per cent per annum above Barclays Bank base rate from time to time, or (ii) the rate from time to time set for the purpose of the Late Payment of Commercial Debts (Interest) Act 1998.
RISK AND PROPERTY
1. Risk of, damage to or loss of the Goods shall pass to the Buyer at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, at the time when the Seller has tendered delivery of the Goods.
2. Notwithstanding delivery and the passing of risk in the Goods, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Price and of the price of all other goods agreed to be sold by the Seller to the Buyer.
3. Until such time as 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 stored, protected and insured and identified as the Seller’s property, but the Buyer may resell or use the Goods in the ordinary course of its business.
4. 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 may at any time require the buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so immediately, enter on any premises of the buyer or any third party where the Goods are stored and repossess the Goods.
5. 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 they Buyer does so all moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) immediately become due and payable.
WARRENTIES AND LIABILITY
1. Subject to clause 7.2, the Seller warrants to the Buyer that the Goods will correspond with their description and that the supply of the Goods (including their packaging) by the Seller will comply with the cosmetics Products (Safety) Regulations 1996 and the Cosmetic Directive 76/768/EEC, together with all product safety requirements imposed the Seller by UK or EU legislation. Subject as expressly provided in section 12 of the Sale of Goods Act 1979, all other warranties, conditions or other terms, whether implied by statute or common law, are excluded.
2. A claim by the Buyer which is based on any defect in the quality or condition of the goods shall be notified to the Seller within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within seven days after discovery of the defect or failure but no later than twelve months after delivery. The Seller shall have no liability for any defect or failure not so notified.
3. Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods is notified to the Seller in accordance with these Conditions, the Seller may replace the goods free of charge or, at the Seller’s sold discretion, refund to the Buyer the Price (or a proportionate part of the Price), and in either case the Seller shall have no further liability to the Buyer.
4. The Seller does not exclude liability for (a) death or personal injury caused by negligence, (b) defective products under the Consumer Protection Act 1987, or (c) fraudulent misrepresentation.
5. Subject to clause 7.4, the Seller excludes all liability for loss of profit and for indirect and consequential losses and the Seller’s entire liability by reason of any breach of contract, tort (including negligence), any representation (unless fraudulent), or otherwise arising out of or in connection with the supply of the Goods with Contract shall not exceed the Price.
6. The Seller shall not be liable to thebuyer or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control.
CANCELLATION ON INSOLVENCY
1. If the Buyer becomes insolvent, makes a voluntary arrangement with its creditors, becomes bankrupt or subject to an administration order, goes into liquidation (otherwise that for the purposes of amalgamation or reconstruction); or an encumbrancer takes possession, or an receiver is appointed, of any of the property or assets of the Buyer; or the Buyer ceases, or threatens to cease, to carry on business; or the Seller reasonably believes that any of the events mentioned above or anything analogues in any country is about to occur in relation to the Buyer, then in any such case the Seller may cancel the Contract or suspend any further deliveries under the Contract, 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.
TERRITORIAL RESTRICTION
1. The Buyer shall not offer the Goods for resale in any country other than that in which the Seller is located or (if more than one) other than that for which the Seller has agreed to sell the Goods to the Buyer, and nor shall the Buyer sell the Goods to any person if the Buyer knows or had reason to believe that person intends to resell the Goods in any such other country. This does not however prevent a Buyer within the EU selling the Goods in response to a passive order to a customer in another country within the EU.
GENERAL
1. The Contract is personal to the Buyer and the Buyer shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Contract. The Contracts (Right of Third Parties) Act 1999 does not apply to the Contract.
2. A notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
3. 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.
4. 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 thereby.
5. The Contract shall be governed by the laws of England, and the parties agree to submit to the exclusive jurisdiction of the English courts provided that the Seller (but not the Buyer) may at its option bring an action in any other court which has jurisdiction.