Terms and Conditions
“Buyer” means the person(s), firm or company who purchases the Goods or Services from the Company. “Company” means Business South Limited (Company Number 5794859) whose registered office is situated at Ocean Village innovation Centre, Ocean Village, Southampton, SO14 3JZ “Contract” means any contract between the Company and the Buyer for the sale and purchase of the Goods or Services, incorporating these Conditions; “Delivery Point” means the place where delivery of the Goods or Services is to take place. “Goods” means any goods to be supplied by the Company to the Buyer. “Services” means any services to be supplied by the Company to the Buyer. “Special Conditions” means all specific conditions relating to the Goods or Services contained in or referred to in the Company’s written acceptance of order form. If there is a conflict between these Conditions and the Special Conditions then the Special Conditions shall prevail.
2.1 Subject to any variation under Condition 2.3, 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).
2.2 The Company will be under no liability for any order received until an acceptance of order is delivered to the Buyer or (if earlier) the Company delivers the Goods or Services to the Buyer at which time a contract will be formed between the Company and the Buyer.
2.3 A Contract may only be cancelled or varied with the Company’s written consent and any representations about the Goods or Services shall have no effect unless expressly agreed in writing by the Company.
2.4 The Company shall not be liable for any advice or recommendation given by the Company or its agents to the Buyer relating to the Goods or Services which is not confirmed by the Company in writing.
3 PRICES AND PAYMENT
3.1 Unless otherwise stated in the Special Conditions prices for the Goods or Services set out in the Special Conditions do not include VAT, insurance, the cost of loading, unloading, carriage and any special packing or alterations to the order agreed between the parties, all of which amounts the Buyer will pay in addition when it is due to pay for the Goods or Services.
3.2 Payment shall be made within 30 days of the date of the Company’s invoice.
3.3 Time for payment shall be of the essence and failure by the Buyer to pay in accordance with the provisions of this Condition shall entitle the Company, without prejudice to its rights to damages:-
3.3.1 to suspend any outstanding deliveries or to cancel the Contract; and/or
3.3.2 to charge interest on any amounts outstanding (both before and after judgment) at the rate of 4% above the Barclays Bank Plc base rate for the time being in force, accruing on a daily basis until payment is made.
3.4 All payments payable to the Company under the Contract shall become due immediately upon termination of the Contract despite any other provision.
4 DELIVERY AND PASSING OF RISK
4.1 The Delivery Point shall be agreed between the Company and the Buyer.
4.2 Any dates specified by the Company for delivery of the Goods or Services are intended to be an estimate and time for delivery shall not be made of the essence. If no dates are so specified, delivery will be within a reasonable time.
4.3 Subject to the other provisions of these Conditions, the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods or Services (even if caused by the Company’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract.
4.4 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:-
4.4.1 the risk in the Goods will pass to the Buyer;
4.4.2 the Goods will be deemed to have been delivered; and
4.4.3 the Company may store the Goods until delivery in which case the Buyer will be liable for all related costs and expenses.
4.5 Any liability of the Company for non-delivery of the Goods or Services shall be limited to replacing the Goods or performing the Services within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods or Services.
5 RISK AND TITLE
5.1 The Goods are at the risk of the Buyer from the time of delivery.
5.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cleared funds) all sums due to it in respect of the Goods.
5.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:-
5.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
5.3.2 store the Goods separately from all other goods of the Buyer or any third party so that they remain readily identifiable as the Company’s property;
5.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.4 maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks; and
5.3.5 hold the proceeds of the insurance referred to in Condition 5.3.4 on trust for the Company and not mix them with any other money.
5.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:-
5.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value and the Buyer shall hold such part of the proceeds of sale as represent the amount owed by the Buyer to the Company on behalf of the Company and the Buyer shall account to the Company accordingly; and
5.4.2 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.
5.5 The Buyer’s right to possession of the Goods shall terminate immediately if: the Buyer becomes:-
5.5.1 unable to pay its debts as they fall due; or
5.5.2 the subject of insolvency legislation in any jurisdiction.
5.6 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.
5.7 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.
6.1 Published specifications, drawings, descriptions, photographs, measurements or capacities are approximate only and shall not form part of the Contract..
6.2 If the Goods are to be manufactured or Services provided by the Company in accordance with the Buyer’s specification, the Buyer shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with the settlement of any claim of infringement of any intellectual property rights of any third party which results from the Company’s use of the Buyer’s specification.
7.1 The Company warrants that (subject to the other provisions of these Conditions):
7.1.1 Goods shall be of satisfactory quality for a period of 12 months from the date of delivery; and/or
7.1.2 Services shall be provided or performed with reasonable skill and care.
7.2 The Company shall not be liable for a breach of any of the warranties in this Condition 7 if:-
7.2.1 the Buyer makes any further use of such Goods after giving notice of any defects; or
7.2.2 the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use of the Goods, or, if there are none, good trade practices; or
7.2.3 the Buyer alters or repairs such Goods without the Company’s consent.
7.3 The Company’s sole obligation under this Condition 7 shall be at its option to repair or replace the Goods or any part thereof or refund the price of such Goods at the pro rata contract rate.
8 LIMITATION OF LIABILITY
8.1 Subject to Condition 7, the following provisions set out the entire financial liability of the Company to the Buyer in respect of any breach of these Conditions and any representation, statement or tortuous act or omission, including negligence arising under or in connection with the Contract.
8.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.3 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or for fraudulent representation.
8.4 Subject to Conditions 8.2 and 8.3:-
8.4.1 the Company’s total liability in Contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the total price paid by the Buyer for the Goods or Services under the Contract; and
8.4.2 the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever which arise in connection with the Contract.
9.1 Any information which the Company discloses relating to the Goods or Services, which is not in the public domain at the time of disclosure, shall be confidential and shall not be disclosed to any third party by the Buyer.
9.2 The Company shall be under no liability for any delay or failure to perform in the event that the manufacture, supply or delivery of the Goods or Services is prevented or delayed by any act or circumstances beyond the Company’s reasonable control.
9.3 All notices required to be served by one party upon the other shall be in writing.
9.4 Any failure by the Company to insist upon strict performance of these Conditions shall not be deemed a waiver of any of the Company’s rights or remedies nor be deemed a waiver of any subsequent default by the Buyer.
9.5 The invalidity, illegality or unreasonableness in whole or in part of any of these Conditions shall not affect the validity of the remainder of such Condition or these Conditions.
9.6 The Company may without the Buyer’s consent assign or sub-contract all or any of its rights and obligations under a Contract.
9.7 The interpretation of every Contract shall be in accordance with English Law. The parties hereby submit to the exclusive jurisdiction of the English courts.