Terms & Conditions of Sale
Ulrick & Short Ltd
Conditions of Sale (2017 Edition)
1.1 In these Conditions the following words shall have the following meanings:
“Account Opening Form” : the form signed by Buyer and Company which signifies that Buyer has a trading account with Company.
“Buyer”: the person, firm or company who purchases the Goods from Company.
“Company”: Ulrick & Short Limited (CRN: 03928777) or any subsidiary or associated company which supplies Goods to Buyer.
“Conditions”: the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) any special terms and conditions agreed in writing between Company and Buyer.
“Contract” : the contract between Company and Buyer for the sale and purchase of the Goods, incorporating these Conditions and the Account Opening Form.
“Goods” : any goods agreed in the Contract to be supplied to Buyer by Company (including any part or parts of any order for Goods).
1.2 Words in the singular include the plural and vice versa.
2. Application of Conditions
2.1 These Conditions cancel and supersede any earlier conditions of sale of Company and shall govern the Contract to the exclusion of any terms or conditions which Buyer purports to apply under any purchase order, confirmation of order, specification or other document, or which are implied by trade, custom, practice or course of dealing, and Buyer waives any right which it might have to rely on such terms or conditions.
2.2 No variation to these Conditions or any representation about the Goods shall have effect unless expressly agreed in writing and signed by a director of Company.
2.3 Each order for Goods by Buyer from Company shall be deemed to be an offer by Buyer to purchase the relevant Goods subject to these Conditions.
2.4 No order placed by Buyer shall be deemed to be accepted by Company until Company has confirmed acceptance of the order in writing or (if earlier) Company delivers the Goods to Buyer.
2.5 Buyer shall ensure that the terms of its order and any applicable specification submitted by Buyer are complete and accurate. Company shall not be liable to Buyer if such terms or specification are not complete and accurate.
2.6 Any quotation is given on the basis that no contract will come into existence until Company has confirmed acceptance of Buyer’s order in writing or (if earlier) delivers the Goods. Any quotation is valid only for all the Goods referred to in the quotation for a period of 14 days from its date, provided that Company has not previously withdrawn it. Company may reject an order which is for only part of the Goods the subject of a quotation.
2.7 Company may notify to Buyer a credit limit for purchasing the Goods from Company. Company shall be entitled to change such credit limit or remove Buyer’s credit terms at any time upon giving notice to Buyer.
3.1 All samples, drawings, descriptive matter, specifications and advertising issued by Company and any descriptions, sizes, measurements or illustrations contained in 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 Company shall be entitled to correct any error without any liability to Buyer.
3.2 Company reserves the right to change the specification of the Goods after acceptance of Buyer’s order provided that such change does not materially alter the characteristics of the Goods.
3.3 The sale of the Goods shall not be a sale by sample.
4.1 Unless otherwise agreed in writing by Company, delivery of the Goods shall be by Company delivering or arranging delivery of the Goods to Buyer’s place of business. Buyer shall unload the
Goods on delivery.
4.2 Any date specified by Company for delivery of the Goods is an estimate only and time for delivery shall not be made of the essence by notice. Where Company agrees to change the specification or quantity of Goods ordered Company shall be entitled to adjust the delivery date accordingly. If no date for delivery has been so specified, delivery will be within a reasonable time.
4.3 Subject to the other provisions of these Conditions, Company shall not be liable for any loss (including but not limited to loss of profit and consequential loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods nor will any delay entitle Buyer to terminate or rescind the Contract.
4.4 Company may deliver the Goods by separate instalments and invoice Buyer separately for the price of the Goods delivered in each instalment.
4.5 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract provided that:
4.5.1 failure by Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by Buyer in respect of any one or more instalment shall not entitle Buyer to treat the Contract as a whole as repudiated; and
4.5.2 Buyer’s refusal to take delivery or make payment in respect of any one or more instalment shall entitle Company to treat the Contract as a whole as repudiated.
4.6 If for any reason Buyer will not accept delivery of any of the Goods, or Company is unable to deliver the Goods on time due to vehicles being unduly delayed at the point of delivery or because Buyer has not provided appropriate instructions, information, documents, licences or authorisations, the price shall become immediately due and payable and risk in the Goods will pass to Buyer. Company
may store the Goods until actual delivery and Buyer will be liable for all related costs and expenses (including without limitation demurrage, storage and insurance). Without prejudice to Company’s right to recover from Buyer any sums due to Company, if Buyer has not collected or accepted delivery of the Goods within 14 days from the date upon which the price became due and payable, Company may dispose of the Goods in such manner as Company may determine.
4.7 Buyer shall not be entitled to reject the Goods if Company delivers up to and including 5% more or
less than the quantity of Goods ordered but, subject to Condition 7.3, a pro rata adjustment shall be
made to the relevant invoice on receipt of notice from Buyer that the incorrect quantity of Goods was
5. Shortfalls and Non-Delivery
5.1 The quantity of any consignment of Goods as recorded by Company upon despatch from Company’s place of business shall be conclusive evidence of the quantity received by Buyer on delivery unless
Buyer can provide conclusive evidence proving the contrary.
5.2 Company shall not be liable for any non-delivery of Goods unless written notice is given to Company within seven working days of the estimated date of delivery supplied by Company.
5.3 Company shall not be liable for any shortfall in the delivery of Goods unless written notice is given to Company within seven working days of delivery.
5.4 Any liability of Company for non-delivery of the Goods shall be limited to delivering the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
5.5 Any liability of Company for any shortfall in the delivery of the Goods shall be limited to making up the shortfall within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 Unless otherwise agreed in writing by Company, the price for the Goods shall be the price in force at the date of acceptance of Buyer’s order.
6.2 Unless otherwise notified in writing by Company, the price for the Goods shall be inclusive of Company’s charges for delivery but shall be exclusive of value added tax, which sum Buyer shall pay at the same time.
6.3 Company shall be entitled at any time prior to delivery of the Goods to increase the price of the Goods to reflect any increase in the cost of the Goods to Company after acceptance of Buyer’s order which is due to factors beyond Company’s reasonable control including, without limitation, currency exchange rate fluctuations, increases in taxes and duties and any other increase incurred by Company in respect of the Goods.
6.4 Company reserves the right to adjust the price of any Goods to reflect any alteration to the specification of the Goods agreed between Company and Buyer after acceptance of Buyer’s order.
7.1 Subject to Condition 7.2 and unless otherwise notified in writing by Company to Buyer, full payment of the price for the Goods and any other charges and sums due under the Contract is due in pounds sterling within the time period referred to in the Account Opening Form (or such other period as may be agreed between the parties in writing). Time for payment shall be of the essence. No payment
shall be deemed to have been received until Company has received cleared funds.
7.2 All sums payable to Company under the Contract shall become due immediately upon termination of the Contract despite any other provision.
7.3 Any issues relating to an invoice must be communicated to Company within seven days of the date of the invoice.
7.4 Buyer shall make all payments due under the Contract without any deduction by way of set-off, counterclaim, discount, abatement or otherwise.
7.5 If Buyer fails to pay Company any sum due pursuant to the Contract Company shall be entitled to suspend performance of Company’s obligations under the Contract or under any other contract
between Company and Buyer and/or charge Buyer interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Lloyds TSB (or such other bank as Company may notify Buyer of in writing from time to time) accruing on a daily basis until payment is made, whether before or after any judgment. Alternatively, Company shall be entitled to charge Buyer interest and compensation in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended from time to time. In addition to interest,
Company shall be entitled to recover from Buyer such legal costs as are incurred in the recovery of sums due and owing to Company.
7.6 Company may at any time set off any liability of Buyer to Company against any liability of Company to Buyer, whether such liability is present or future, liquidated or unliquidated, under the Contract or otherwise.
8. Risk and Ownership
8.1 The Goods shall be at the risk of Buyer from the time of delivery.
8.2 Ownership of the Goods shall not pass to Buyer until the earlier of:
8.2.1 the time that Company has received in full in cash or cleared funds:
(a) all sums payable in respect of the Goods; and
(b) all other sums which are or which become payable to Company from Buyer on any account including any interest on such sums,
in which case title to the Goods shall pass at the time of payment of all such sums; and
8.2.2 the time that Buyer resells the Goods, in which case title to the Goods shall pass to Buyer at the time specified in Condition 8.4.
8.3 Until ownership of the Goods has passed to Buyer, Buyer shall:
8.3.1 store the Goods (at no cost to Company) separately to other goods of Buyer or any third party in a way that they remain readily identifiable as Company’s property;
8.3.2 not remove, destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.3 maintain the Goods in satisfactory condition insured for their full price from the date of delivery against all risks and hold the proceeds of insurance on trust for Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account;
8.3.4 notify Company immediately if it becomes subject to any of the events listed in Condition 8.5; and
8.3.5 give Company such information relating to the Goods as Company may require from time to time.
8.4 Buyer may resell the Goods before ownership has passed to it solely on the condition that any sale shall be on Buyer’s own behalf in the ordinary course of Buyer’s business at full market value and Buyer shall deal as principal (not as Company’s agent) when making such sale. In such circumstances, title to the Goods shall pass from Company to Buyer immediately before the time at
which resale by Buyer occurs.
8.5 Buyer’s right to possession and resale of the Goods shall terminate immediately and all sums shall become due and payable immediately and Buyer agrees that Company shall have the right to rescind or terminate the Contract and/or to suspend any further deliveries under the Contract if any of the following events, or Company reasonably believes that any of the following events will,
8.5.1 Buyer has a bankruptcy order made against it or makes an arrangement or composition with its 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 or enters into liquidation, 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 Buyer or notice of intention to appoint an administrator is given by Buyer or its directors or by a qualifying floating charge holder, or a resolution is passed or a petition presented for the winding up of Buyer or for the granting of an administration order in respect of Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of Buyer; or
8.5.2 Buyer encumbers or in any way charges any of the Goods or suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or
fails to observe or perform any of its obligations under the Contract or any other contract between Company and Buyer, or is unable to pay its debts or Buyer ceases to trade.
8.6 Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Company.
8.7 Company may at any time require Buyer to deliver up all Goods in its possession which have not been resold or irrevocably incorporated into another product.
8.8 Buyer grants 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 Buyer’s right to possession has terminated, to recover them.
8.8 Where Company is unable to determine whether any Goods are the goods in respect of which Buyer’s right to possession has terminated, Buyer shall be deemed to have sold all goods of the kind sold by Company to Buyer in the order in which they were invoiced to Buyer.
8.9 On termination of the Contract, howsoever caused, Company’s (but not Buyer’s) rights contained in this Condition 8 shall remain in effect.
9.1 Company warrants (subject to the other provisions of these Conditions) that upon delivery the Goods will:
9.1.1 be free from material defects in material and workmanship; and
9.1.2 comply with the manufacturer’s specification for the Goods, subject to any qualification contained in the specification.
9.2 Company shall not be liable for a breach of the warranty in Condition 9.1 unless:
9.2.1 Buyer gives written notice of any defect to Company within 14 working days of delivery; and
9.2.2 Company is given a reasonable opportunity of examining the Goods and Buyer (if asked to do so by Company) returns the Goods to Company’s place of business for the examination
to take place there.
9.3 Company shall not be liable for a breach of the warranty in Condition 9.1 if:
9.3.1 Buyer makes any further use of the Goods after giving notice of any defect;
9.3.2 the defect arises because Buyer failed to follow Company’s instructions as to the storage or use of the Goods or good trade practice;
9.3.3 Buyer alters or modifies the Goods without the prior written consent of Company;
9.3.4 the defect arises as a result of Company following any specification supplied by Buyer; or
9.3.5 the Goods differ from their specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
9.4 Subject to Conditions 9.2 and 9.3, if any of the Goods do not conform with the warranty in Condition
9.1 Company shall at its option replace such Goods or refund the price of such Goods at the pro rata Contract rate and shall have no further liability for breach of the warranty in Condition 9.1 in respect of such Goods. If Company so requests, Buyer shall, at Company’s reasonable expense, return the Goods or the parts of such Goods which are defective to Company.
9.5 These Conditions shall apply to any replacement Goods supplied by Company.
10. Limitation of Liability
10.1 Subject to Conditions 4, 5 and 9, the following provisions set out the entire liability of Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to
Buyer in respect of any:
10.1.1 breach of these Conditions;
10.1.2 use made or resale by Buyer of any of the Goods, or of any product incorporating the Goods; and
10.1.3 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 Company:
10.3.1 for death or personal injury caused by Company’s negligence, or the negligence of Company’s employees, agents or subcontractors (as applicable);
10.3.2 for defective products under the Consumer Protection Act 1987;
10.3.3 for any matter in respect of which it would be illegal for Company to exclude or attempt to exclude its liability; or
10.3.4 for fraud or fraudulent misrepresentation.
BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 10.4
10.4 Subject to Conditions 10.2 and 10.3:
10.4.1 Company shall not be liable to Buyer for any:
(a) pure economic loss;
(b) loss of profit;
(c) loss of goodwill;
(d) loss of business opportunity;
(e) loss of revenue;
(f) production downtime; or
(i) any type of indirect, consequential or inconsequential loss or damage, costs, expenses or other claims for consequential compensation,
in each case whatsoever (howsoever caused) which arise out of or in connection with the Contract, including but not limited to any claim under tort (including negligence and breach of statutory duty) or under contract; and
10.4.2 in any event Company’s total liability to Buyer for any claim arising under or in connection with the Contract, whether arising in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise, shall in all circumstances be limited to a sum equal to 150% of the price of the Goods the subject of a valid claim.
11. Intellectual Property Rights
11.1 Buyer shall not use Company’s name, logo or other intellectual property rights in advertising or publicity without Company’s prior written consent.
11.2 Where the Goods are produced to Buyer’s specification, Buyer shall indemnify 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 professional costs and expenses) suffered or incurred by Company in connection with any claim made against
Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Company’s use of such specification. This Condition 11.2 shall survive termination or completion of the Contract.
12. Events beyond Company’s control
Company reserves the right to defer the date of delivery or to cancel the Contract or to reduce the volume of the Goods ordered by Buyer (without liability to Buyer and without prejudice to Company’s right to recover all sums owed to it by Buyer in respect of consignments delivered and costs incurred prior to the date of such deferment, cancellation or reduction) if Company is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Company including, without limitation, acts of God, governmental actions, war, national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials or ingredients.
13.1 Buyer shall not assign, transfer or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Company.
13.2 Company shall be entitled to assign, subcontract and deal in any other manner with all or any of its rights or obligations under the Contract.
13.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.4 Failure or delay by Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
13.5 Any waiver by Company of any breach of, or any default under, any provision of the Contract by Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.6 Each right or remedy of Company under the Contract is without prejudice to any other right or remedy of Company whether under the Contract or not.
13.7 Any 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 notice.
13.8 Subject to Conditions 13.1 and 13.2, nothing in these Conditions confers on any third party any benefit or any right to enforce any of these Conditions.
13.9 Nothing in the Contract excludes the statutory rights of consumers.
13.10 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the jurisdiction of the English courts.
13.11 The Contract constitutes the entire agreement between the parties in respect of its subject matter and supersedes and extinguishes all previous agreements, promises, assurances, warranties,
representations and understandings between the parties, whether written or oral, relating to its subject matter.
13.12 Each party acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by the other party (whether innocently or negligently) which is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation (or negligent misstatement) based on any statement in the Contract.
13.13 Where Buyer is an individual, by entering into the Contract Buyer hereby consents to Company processing Buyer’s personal data (as defined in the Data Protection Act 1998 or any applicable legislation which replaces or supersedes that Act) in order to assist Company in performing its obligations under the Contract and, unless Buyer notifies Company otherwise, for the purposes of Company sending marketing materials to Buyer from time to time.