Terms and Conditions
The buyer’s attention is in particular drawn to the provisions of condition 10.4.
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Buyer: the person, firm or company who purchases the Goods from the Company.
Company: Pontrilas Merchants Limited.
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these conditions.
Delivery Point: the place where delivery of the Goods is to take place under condition 4.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
Application of terms
2.1 Subject to any variation under condition 2.2 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any document). No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order or other document shall form part of the Contract simply as a result of such document being referred to in the Contract. 2.2 These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a representative of the Company.
2.3 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. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation by the Buyer shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions. No order placed by the Buyer shall be deemed to be accepted by the Company until the Company confirms that it can fulfil the order or (if earlier) the Company delivers the Goods to the Buyer.
2.5 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.6 Any quotation is given on the basis that no Contract shall come into existence until the Company acknowledges the Buyer’s order or (if earlier) the Company delivers the Goods to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1 The quantity and description of the Goods shall be as set out in the Buyer’s order or any subsequent variation of it accepted by the Company.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and no Contact shall be a sale by sample.
4.1 The Buyer shall take delivery of the Goods within 14 days of the Company giving it notice that the Goods are ready for delivery.
4.2 Any dates specified by the Company for delivery are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.3 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.4 If for any reason the Buyer fails to accept delivery, or the Company is unable to deliver because the Buyer has not provided appropriate instructions, documents, licences or authorisations, then a) risk in the Goods shall pass to the Buyer (including for loss caused by the Company’s negligence) AND b) the Goods shall be deemed to have been delivered (and the Company shall be entitled to invoice for them) AND c) the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses.
4.5 The Buyer shall provide at the Delivery Point adequate and appropriate equipment and manual labour for loading the Goods.
4.6 If the Company delivers a quantity of Goods up to 5% more or less than the quantity ordered, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.7 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.8 Each instalment shall be a separate Contract and no cancellation or termination of anyone Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5.1 The quantity of any consignment of Goods as evidenced by a signed proof of delivery shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence of the contrary.
5.2 The Company shall not be liable for non-delivery (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within 7 days of the date when the Goods should have been received.
5.3 Any liability of the Company for non-delivery shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received all sums due to it in respect of a) the Goods and b) all other sums due to the Company from the Buyer.
6.3 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 AND b) store the Goods separately in such a way that they remain readily identifiable as the Company’s property AND c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods AND d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks. On request the Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer may resell the Goods before ownership has passed to it on the conditions that a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value AND b) any 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.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if the Buyer a) has a bankruptcy order made against him or makes any arrangement or composition with his creditors, or anything similar or equivalent happens to the Buyer OR b) 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, is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, ceases to trade, or encumbers or in any way charges any of the Goods.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 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.
6.8 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.
6.9 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery.
7.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
8.1 Subject to condition 8.2, payment of the price for the Goods is due in pounds sterling on the last working day of the month following the month in which the Goods are delivered or deemed to be delivered. Time for payment shall be of the essence and no payment shall be deemed to have been received until the Company has received cleared funds.
8.2 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.3 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
9.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
9.2 The Company warrants that (subject to the other provisions of these conditions) upon delivery the Goods shall a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and b) be reasonably fit for any purpose for which the Goods are being bought if the Buyer has made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Company.
9.3 The Company shall not be liable for a breach of the warranties in condition 9.2 unless a) the Buyer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there.
9.4 The Company shall not be liable for a breach of the warranties in condition 9.2 if a) the Buyer makes any further use of such Goods after giving such notice OR b) the defect arises because the Buyer failed to follow the Company’s instructions as to the storage, installation, commissioning, use or maintenance of the Goods or good trade practice OR c) the Buyer alters or repairs such Goods.
9.5 Subject to condition 9.3 and condition 9.4, if any of the Goods do not conform with the warranties in condition 9.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate (provided that the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company).
9.6 If the Company complies with condition 9.5 it shall have no further liability for a breach of the warranties in condition 9.2 in respect of such Goods.
9.7 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms.
Limitation of liability
10.1 Subject to condition 4, condition 5 and condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of a) any breach of these conditions b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these conditions excludes or limits the liability of the Company a) for death or personal injury caused by negligence; or b) under section 2(3), Consumer Protection Act 1987; or c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or d) for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.2 and condition 10.3 a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and b) the Company shall not be liable to the Buyer for any indirect or consequential loss or for any direct or indirect loss of profit, business or goodwill which arise out of or in connection with the Contract.
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) ifit is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company.
12.1 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly invalid it shall be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect, unless that would fundamentally frustrate the original purpose of the Contract.
12.2 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.