Mark Vitow Terms & Conditions of Sale
address as a safe hard road permits. We reserve the right to refuse to deliver the Goods to premises considered in the discretion of the driver to be unsuitable. 5.8 If Goods are to be deposited other than on your private premises You shall be responsible for compliance with all regulations and for all steps which need to be taken for the protection at all times of persons or property and will indemnify Us in respect of all costs claims losses or expenses We may incur as a result of such delivery whether on the public highway or elsewhere. 6. INSPECTION 6.1 Y ou shall inspect the Goods at the place and time of unloading but nothing in these Terms shall require You to break packaging and/or unpack Goods which are intended to be stored before use. 6.2.1 You must give us written notice within 3 working days of unloading of any claim for short delivery. If you do not give Us that notice within that time 6.2.2 The Goods will be deemed to have been delivered in the quantities shown in the delivery documents. 6.2.3 You shall not be entitled and irrevocably and unconditionally waive any right to reject the Goods or claim any damages whatsoever for short delivery howsoever caused. 6.2.4 O ur liability for short delivery is limited to making good the shortage. 6.3.1 W here it is or would have been apparent on reaso- nable inspection that the Goods are not in confor- mity with the Contract or (where the Contract is a contract for sale by sample) that the bulk does not compare with the sample You must give Us Notice within 7 working days. 6.3.2 If you are not a Consumer and You fail to give us That notice within that time the Goods will be deemed to have been accepted and you shall not be entitled and irrevocably and unconditionally waive any right to reject the Goods. 6.3.3 If you are not a Consumer and You fail to give Us that notice within that time Clause 8.7 shall have effect. 7. TITLE AND RISK 7.1 Risk in the Goods shall pass to You when the Goods are delivered. 7.2 The property in the Goods shall remain with Us Until You pay all sums due to Us whether in respect of this Contract or otherwise. 7.3 U ntil title passes:- 7.3.1 You shall hold the Goods as our fiduciary agent and bailee 7.3.2 The Goods shall be stored separately from any other goods and You shall not interfere with any identification marks labels batch numbers or serial numbers on the Goods 7.3.3 W e agree that You may use or agree to sell the Goods as principal and not as our agents in the ordinary course of your business subject to the express condition that at our direction the entire proceeds of any sale or insurance proceeds received in respect of the Goods are held in trust for Us and not mixed with any other monies or paid into an overdrawn bank account and shall at all times be identifiable as our money. 7.4 W e shall be entitled to recover any or all of the Goods in your possession to which We have title and for that purpose We our servants or agents may with such transport as is necessary enter upon any premises occupied by You or to which You have access and where the Goods may be or are believed to be situated. 8. LIABILITIES 8.1 N othing in these Terms shall exclude or restrict our Liability for death or personal injury resulting from our negligence or our liability for fraudulent misrepresentation. 8.2 W e are willing to undertake liability in addition to that provided by these Terms if a higher selling price for the Goods is agreed. 8.3 If You deal as a Consumer any provision of these Terms which is of no effect shall not apply. The statutory rights of a Consumer are not affected by these Terms. 8.4 S ubject to Clauses 8.1 to 8.3 of these Terms we shall not be liable by reason of any misrepresentation (unless fraudulent) or any breach of warranty condition or other term express or implied or any breach of duty (common law or statutory) or negligence for any damages whatsoever. Instead of liability in damages We undertake liability under clause 8.5 below: 8.5 W here but for the effect of Clause 8.4 of these Terms You would have been entitled to damages against Us We shall not be liable to pay damages but subject to the conditions set out in Clause 8.6 below shall in our sole discretion either repair the Goods at our own expense or supply replacement Goods free of charge or refund all (or part) of the price paid for the relevant Goods. 8.6 W e will not be liable under Clause 8.5: 8.6.1 if the Defect arises from fair wear and tear or if the Defect arises from wilful damage negligence abnormal working conditions mis-use alteration or repair of the Goods failure to follow British Standard or industry instructions relevant to the goods or storage of the Goods in unsuitable conditions (but this sub- clause shall not apply to any act or omission on our part) 8.6.2 U nless after discovery of the Defect we are given a reasonable
opportunity to inspect the Goods before they are used or in any way interfered with. For the avoidance of doubt We acknowledge that the costs of suspending works are relevant to the determination of what is a reasonable opportunity and this sub-clause shall not apply to any works affecting the Goods which it may be reasonably necessary to carry out in the interests of safety and/or as emergency measures. 8.7 S ubject to Clauses 8.1 to 8.3 of these Terms We Shall not be liable by reason of any misre-presentation (unless fraudulent) or any breach or warranty condition or other term express or imp-lied or any breach of duty (common law or statutory) or negligence for any damages whatsoever (if notwithstanding Clause 8.4 of these Terms You are entitled to recover any) nor shall We be liable under Clause 8.5 of these Terms unless:- 8.7.1 if the Defect would have been apparent on a rea-sonable inspection under Clause 6.1 of these Terms at the time of unloading written notice of any claim is given to Us within 7 working days of the time of unloading; or in any other case 8.7.2 the Defect is discovered within 3 months from the date of delivery and We are given written notice of the Defect within 7 working days of it being discovered If the Goods are not manufactured by Us our liability in respect of any defect in workmanship or materials of the Goods will be limited to such rights against the manufacturer or the third party as We may have in respect of those Goods. We will on written request provide details of our rights against the manufacturer or third party and any other terms and conditions imposed by the manufacturer or the third party and so far as possible will on request assign to You any such rights. 8.8 If You are not dealing as a Consumer You will unconditionally fully and effectively indemnify Us against all loss damages costs on an indemnity basis and expenses awarded against or incurred by Us in connection with or paid or agreed to be paid by Us in settlement of any claim by any third party arising from the supply or use of the Goods including loss arising from our negligence. 9. NON-PAYMENT/INSOLVENCY 9.1 “Insolvent” means You becoming unable to pay your debts within the meaning of Section 12 of the Insolvency Act 1986; the levying or the threat of execution or distress on any of your property; a proposal for a voluntary arrangement or compro- mise between You and your creditors whether pursuant to the Insolvency Act 1986 or otherwise; the passing of a resolution for voluntary winding- up or summoning a meeting to pass such a resolu-tion otherwise than for the purposes of a bona fide amalgamation or reconstruction; the presentation of a petition for your winding-up or for an admini-stration order in relation to You; if you suffer any analogous step or proceedings under foreign law or You ceasing or threatening to cease to carry on your business. 9.2 If You fail to pay the price for any Goods on the due date or you become Insolvent or if You are a limited company or partnership there is a material change in your constitution or You commit a material breach of this Contract and fail to remedy that breach all sums outstanding between You and Us shall become immediately payable and We shall be entitled to do any or more of the following (without prejudice to any other right or remedy We may have):- 9.2.1 require payment in cleared funds in advance of further deliveries 9.2.2 cancel or suspend any further deliveries to You under any contract without liability on our part 9.2.3 c harge interest on the balance of monies outstand-ing at a rate of 2% above Barclays Bank plc base rate in force from time to time from the date payment became due until actual payment is made after as well as before judgment 9.2.4 without prejudice to the generality of Clause 7 of these Terms exercise any of our rights pursuant to that Clause. 10. GENERAL 10.1 TO PARNERSHIP AND SOLE TRADE DEBTORS: We may transfer information about you to our Bankers/financiers for the purposes of providing Services and for the following purposes:- Obtaining credit insurance; Making credit ref- erence agency searches; Credit control; Assess-ment and analysis (including credit scoring, market, product and statistical analysis); Securi-tisation; Protecting our interests. We will provide you with details of our bankers/financiers and that of any credit reference agencies used on request. 10.2 This Contract shall be governed and interpreted Exclusively according to the Law of England. 10.3 W e shall not be liable for any delay or failure to Perform any of our obligations in relation to the Goods due to any cause beyond our reasonable control including industrial action. 10.4 T he waiver by Us of any breach or default of these Terms shall not be construed as a continued waiver of that breach nor as a waiver of any subsequent breach of the same or any other provision. 10.5 If any clause or sub-clause of these Terms is held By a competent authority to be invalid or unenforceable the validity of the other clauses and sub-clauses of these Terms shall not be affected and they shall remain in full force and effect. 10.6 H ealth and Safety information relevant to the Goods is available on request.
1. DEFINITIONS In these conditions “We” and “Us means Mark Vitow Limited. “Your” means the person seeking to purchase Goods from Us. “the Goods” means the goods or where the context permits the services to be supplied by Us; “Consumer” means a con-sumer as defined by the Unfair Contract Terms Act 1977 or the Unfair Terms in Consumer Contracts Regulations 1994; “the Defect” means the condition and/ or any attribute of the Goods and/or any other circumstances which but for the effect of these Terms would have entitled You to damages; “the Terms” means the terms set out in this document and any special terms agreed in writing between Us and You; “the Contract” means the contract for the supply of Goods incorporating these Terms. 2. THE CONTRACT 1. All orders are accepted by Us only under these Terms and they may not be altered other than with our written agreement. Any contrary or additional terms unless so agreed are excluded. 2. Orders may be cancelled only with our written agreement and You will indemnify us against all costs claims losses or expenses incurred as a result of that cancellation. 3. You shall be responsible to Us for ensuring the accuracy of the terms of any order including any applicable design drawing or specification provided to Us by You and for giving Us an necessary information relating to the Goods within a sufficient time to enable Us to perform the Contract in accordance with its Terms. 2.4.1 W e shall not be liable in respect of any misrepre-sentation made by Us our servants to You your servants or agents as to the condition of the Goods their fitness for any purpose or as to quantity or measurements unless the representation is either made or confirmed in writing by Us and/or fraudulent. 2.4.2 W ithout prejudice to clause 2.4.1 of these Terms while We take every precaution in the preparation of our catalogues technical circulars price lists and other literature these documents are for your gene- ral guidance only and statements made therein (in the absence of fraud on our part) shall not consti- tute representations by Us and We shall not be bound by the. 3. PRICE 3.1a The price of the Goods shall be as published in our price list current at the date of delivery of the Goods. The price is exclusive of VAT which shall be due at the rate ruling on the date of a VAT Invoice. 3.1b O ur quotations and prices are based on costs pre-vailing at the time when they are given or agreed. We shall be entitled to adjust the price of the Goods as at the time of delivery by such amount as may be necessary to cover any increase sustai-ned by Us after the date of acceptance of your order and any direct or indirect costs of making obtaining handling or supplying the Goods. 4. PAYMENT 4.1 U nless the sale is for cash or other credit terms have been agreed in writing all accounts are due for payment on the last day of the month following the month in which the Goods are delivered. 4.2 We reserve the right to refuse to execute any order or contract if the arrangements for payment or the customer’s credit are not satisfactory to Us and in our sole discretion We may require payment for each consignment when it is available and before it is despatched in which case delivery will not be effected until We are in receipt of cleared funds. 4.3 In the case of short delivery You will remain liable to pay the full invoice price of all Goods delivered or available for delivery. 4.4 Y ou may not withhold payment of any invoice or other amount due to Us by reason of any right of set off or counterclaim which You may have or allege to have for any reason whatever. 4.5 W e shall be entitled at all times to set off any debt or claim or whatever nature which We may have against You against any sums due by Us to You. 5. DELIVERY 5.1 D elivery will be effected when the Goods leave our premises or the premises of our suppliers whent Goods are delivered direct from suppliers 5.2 D elivery dates are given in good faith but are estimates only. 5.3 T ime for delivery shall not be of the essence of the Contract. 5.4 For the avoidance of doubt and without derogation from any other provisions of these Terms We shall not be liable for any damages whatsoever whether direct or consequential (including for the avoidance of doubt any liability to any third party) resulting from any delay in delivery of the Goods or failure to deliver the Goods in a reasonable time whether such delay or failure is caused by our negligence or otherwise howsoever. 5.5 W e reserve the right to make delivery by instalments and tender a separate invoice in respect of each instalment. Our failure to deliver any one or more instalments shall not entitle You to treat the Contract as a whole as repudiated. 5.6 T he price agreed includes the cost of delivery on week days during normal working hours. An addi-tional charge will be made if We agree to your request to deliver outside normal working hours. 5.7 W e shall deliver the Goods as near as possible to the delivery
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