In these conditions the following expressions shall have the meanings hereby respectively assigned to them, that is to say “the Company” means Jacobs and Turner Limited and any other associated Companies, “the Purchaser” means the customer with whom the Company is contracting, “goods” shall mean such items, objects or goods as are contained in the Company’s written acceptance of the offer or alternatively as are delivered to the Purchaser.
2. Availability of Stock and Cancellation
(i) All goods which are to be sold are for sale on the condition that they are in stock and unsold on receipt of the order.
(ii) Should the Purchaser seek to cancel or actually cancel an order accepted by the Company, such cancellation may at the sole discretion of the Company be accepted by the Company, but only upon the condition that
(a) The Purchaser notifies the Company in writing of the intention to cancel and
(b) The Purchaser pays on demand to the Company all costs and expenses incurred by the Company arising out of the accepted order up to time of receipt by the Company of the written notice of intended cancellation: all costs and expenses to be quantified by a Director of the Company, whose decision shall be final.
If the Purchaser is or has been induced by or relies upon any statement or representation, made to it by the Company, its servants or agents (other than one contained in any written document enclosed with the Company’s quotation) whether made before or after receipt by the Purchaser or confirmation in writing by the Company of the acceptance of any other order resulting from this quotation, then the Purchaser must send to the Company a copy in writing of that statement or representation, together with a copy of his order whereupon the Company shall be entitled to retract, qualify or modify that statement or representation or any part thereof and/or if the Company deems it appropriate, submit a new quotation to the Purchaser. Any qualification or modification shall apply only to the particular contract or contracts for which it was given. Each despatch or collection of goods will be regarded as a separate contract for this purpose. The Purchaser acknowledges that it is not being induced to enter into the contract by any statement or representation other than one notified by the Company in the manner described in this condition.
4. Delivery and Delay
(i) Any time or date for delivery named by the Company is an estimate only. The Company shall not be liable for any consequences of any delay howsoever caused or howsoever arising other than the delay caused by the Company’s own negligence.
(ii) No delay by the Company shall entitle the Purchaser to resile from the contract unless:
(b) The Purchaser has intimated to the Company in writing that the goods have not been delivered and the Company has failed to deliver the goods within three days of receiving said notice in writing.
(iii) From the time of despatch of the goods from the Company’s premises, the goods shall be the responsibility of the Purchaser, all risk shall pass to the Purchaser.
(i) All prices given to the Purchasers by the Company are, unless otherwise stated exclusive of V.A.T. and provisional only. The Company shall be entitled to increase any price in respect of any increase to the Company of the cost of Labour, materials, operations or transport.
(ii) All prices stated are for the total quantity specified and the Company shall not be obliged to supply only a portion of any such total quantity at the rates of prices stated.
(iii) The price shall exclude the cost of carriage unless otherwise stipulated by the Company.
(iv) By Agreement with the Company or should the Purchaser default in any of the conditions hereof and the goods are stored in the Company’s premises, the Company is entitled to make a reasonable charge for their storage.
(v) In the event that the Company accepts variation made at the request of the Purchaser to the terms and/or specifications of the contract the Company reserves the right to make additional charge in respect thereof.
6. Terms of Payment
(i) Payment for the goods shall be made by the Purchaser within thirty days of the date of delivery or despatch, notwithstanding the existence of any dispute between the Company and the Purchaser in relation to this or any other Agreement.
(ii) Time for payment of the purchase price shall be of the essence; if for any reason payment is not made on due date or dates the Company shall be entitled, without prejudice, to any other right that it has, to take any or all of the following actions:
(a) Resile from the contract.
(b) Postpone the fulfilment of its own obligations under the Agreement or any other Agreement until such overdue payment is made.
(c) During such time the sum due remains unpaid, charge interest on the sum or sums due throughout the period of default at four per cent above the current base rate of the Clydesdale Bank Plc.
(d) During such time the sum remains unpaid and cheques or other Bills of Sale are represented, having been referred to Drawer, charge the Purchaser the sum of £5.00 for each time the said cheque or Bills of Sale are represented.
(e) Demand payment in advance of all further goods supplied to the Purchaser and further the Company reserves the right to clear Purchasers cheques prior to making delivery.
7. Reservation of Title
(i) Notwithstanding the passing of risk in the goods under paragraph 4 above, the property in the goods to which this contract relates shall (in terms of the Sale of Goods Act, 1979 and notwithstanding that the goods are in the possession of the Purchaser) remain with the Company and shall be transferred or passed to the Purchaser only upon payment in full for goods being received by the Company. If the price of the goods is payable by instalments or only part of the price has been paid the Company may appropriate any instalment or part payment to any part of the goods and property in such part shall be transferred or passed to the Purchaser.
(ii) Until the transfer or passing of property in the goods under sub-paragraph (I) above, the customer shall keep the Company’s goods or procure that the Company’s goods are kept in safe custody and separate from any goods which are the property of the customer or any other third party.
(iii) Notwithstanding the provisions of sub-paragraph (I) above the customer shall have authority to sell the Company’s goods to third parties under bona fide contracts of sale concluded in the ordinary course of the customer’s business in which event property in the goods so sold shall be transferred or passed to the customer upon delivery of such goods to the third party concerned or to a carrier or other custodier for the purpose of transmission to him.
(iv) The authority conferred in the customer by sub-paragraph (iii) above shall be deemed ipso facto to have been revoked:-
(a) If the Customer has not paid for the goods in full within the credit period stated in the invoice or within any longer period of credit agreed in writing by the Company.
(b) If the customer (being an individual or firm) shall become notour bankrupt or commit any act of bankruptcy, or
(c) If the customer (being a Company) has a receiver appointed over the whole or any part of its property or undertaking or a petition is presented or a resolution proposed for its winding up.
and at any time thereafter the Company shall be entitled by its authorised agents to enter upon the customer’s premises and repossess and remove at the expense of the customer any of the goods thereon which remain the property of the Company. Upon removal of such goods the Company will pass a credit note (if appropriate) in respect thereof to the customer.
(v) The Company may at any time notwithstanding that payment in full has not been received for goods, waive its reservation of title thereto or to any part thereof by notice in writing to the customer whereupon property in such goods shall forthwith pass to the customer.
8. Inspection Defects and Shortages
(i) The Purchaser shall accept delivery of goods during the Purchaser’s normal working hours and if, for any reason the Purchaser refuses to accept delivery of the goods from the Company during the Purchaser’s normal working hours, the Company shall be entitled to charge a reasonable sum for the storage thereof and subsequent delivery cost.
(ii) The Purchaser shall inspect the goods immediately upon arrival thereof and unless within three days from such inspection the Purchaser gives notice in writing to the Company of any fact or any matter whereby it alleges that the goods do not accord with the contract, the goods shall be deemed to be in all aspects in accordance with the contract and the Purchaser shall be bound to accept and pay for the same accordingly.
Without prejudice to the foregoing generality the Purchaser shall have no claim other than for
(b) Defects which careful inspection upon delivery ought to reveal. Provided a written complaint is sent to the Company within three days of delivery specifying the exact spot shortage and/or defect and provided the Company is given the opportunity to inspect the goods.
(iii) If the Company is satisfied as a result of the complaint made by the Purchaser in the manner described above that there is a short delivery and/or such defects in the goods were occasioned by the negligence of the Company, the Company will make good the shortage and/or delivery of replacements or at its option credit the Purchaser in full in respect thereof, or repair the goods.
(iv) The Company expressly excludes liability in respect of
(a) A claim made by the Purchaser for expenditure incurred by the Purchaser on goods which are subsequently replaced by the Company.
(b) Any liability (in contract or delict or otherwise whatsoever) for consequential loss or damage, caused by our arising out of the use of goods or in respect of the goods, howsoever arising.
(c) Any liability (in contract of delict of otherwise howsoever) for loss or damage in respect of any defects resulting from negligence or improper use, storage or handling of the goods and the treatment or use of the goods in a manner other than for which they were, to the Purchaser’s knowledge manufactured.
(d) Any liability (in contract or delict or otherwise howsoever) for loss or damage in respect of any defects arising from the use of the Company of containers supplied by the Purchaser.
(v) Without prejudice to the generality of this or any other condition of the Agreement the implied warranties and conditions contained in section 13, 14 and 15 of the Sale of Goods Act, 1979 are hereby expressly excluded in respect of all contracts relating to goods in which the Purchaser has ordered or requested that the goods be supplied or delivered outwith the United Kingdom.
(vi) Nothing herein shall effect the statutory rights of a consumer under sections 13 to 15 of the Sale of Goods Act, 1979 unless the contract falls within part 8(v) of these conditions.
(vii) The Purchaser will have no authority in relation to the Company or its products except as herein provided and shall indemnify the Company in respect of any claims resulting from any act or omission of the Purchaser or his Agents. In the event of any claim being made against the Company in which the Purchaser is bound in terms of this condition to indemnify the Company, the Purchaser hereby expressly confers authority on the Company to settle any such claim extra judicially and the Purchaser accepts that in the event of the Company settling any such claim extra judicially, this will not affect the Purchasers liability to indemnify the Company.
(i) Before Goods are returned for any reason including guarantees claims, a return authorization must be obtained from the returns department. All Goods must be returned with carriage prepaid. Evidence of purchase must be supplied. The decision of the Company as to the eligibility for credit and the amount of credit will be final. A restocking charge equal to 25% of the net price originally invoiced will be deducted from any credit issued other than Goods agreed by the company to be under guarantee.
10. Supervening Impossibility or Frustration
(i) In the event of war, invasion, act of foreign enemy, hostilities (whether war has been declared or not) civil war, rebellion, revolution, insurrection, military or usurped powers or acts of God, the Company shall be relieved of all liabilities incurred under this contract where ever and to the extent which the fulfilment of such obligations is prevented, frustrated or impeded as a consequence of any such event or by a statue, rules, regulations, orders or requisitions issued by any Government Department, Council or any other duly constituted body, or from strikes, lock outs, break downs of plant or any other causes (whether or not of like nature) beyond the Company’s control.
11. Discharge of Contract
Without prejudice to any other in these Terms and Conditions of Sale, in the event that the following takes place or its equivalent in an analogous process,
(a) A Receiver is appointed over the whole or any part of the assets of the Purchaser or
(b) A resolution is passed or a Petition presented for the Liquidation of the Purchaser or
(c) The Purchaser commits an act of bankruptcy or
(d) Any diligence in execution or the equivalent thereof, is executed against the Purchaser.
The Company may in its absolute discretion elect either to discharge the contact for the sale of the goods hereunder or not to deliver goods, except against payment in cash of the purchase price of the goods in full.
12. Jurisdiction and Law
These Conditions of Sale and contract shall be governed by the Law of Scotland and the Purchaser, in so far as not already subject thereto prorogates the exclusive Jurisdiction of the Scottish Courts and renounces the Jurisdiction of any Court of any other Country.
13. Patents, Designs, Copyright and Trade Marks
The Company shall not in any circumstances be liable for any loss, liability or expense suffered or incurred by the buyer by reason of any use or resale of the goods which constitute an alleged or actual infringement of patent design, copyright or trademark, foreign or domestic, vested in a third party.
14. Data Protection Act 1998
I/We hereby agree that: JACOBS & TURNER LIMITED, may collect, use and disclose personal data about me/us so that you can open and administer my/our account and for other related purposes including assessment of credit and conduct, providing credit references, monitoring and analysis of our business, crime prevention, legal and regulatory compliance and transfer of any of our rights of obligations under my/our agreement with you. You may also transfer the personal data you hold about me/us to any country including countries outside the European Economic Area, for any of the purposes described herein.
If in the course of your business, you incidentally collect personal data about my our racial or ethnic original, political opinion, religious or other similar beliefs, trade union membership, physical or mental health, sexual life or criminal record, you may use, disclose and transfer such personal data for any of the purposes described herein.
I/we are aware that with limited exceptions I/we have the right of access under data protection legalization to the personal data that you hold about me.