i) “The Seller” means Lakeside Industries Limited, “The Buyer” means the person, firm or company, authority or government department, which purchases the Goods from the Seller.
ii) “Contract” means any contract between the Seller and the Buyer for the sale and purchase of the Goods, incorporating these conditions
iii) “The Goods” means any goods, equipment, components, spare parts and materials agreed in the Contract to be supplied to the Buyer by the Seller (including any part or parts of them).
iv) “the Carrier” means the person, firm or company who delivers the Goods to the Buyer and includes the Seller where the Seller delivers.
v) A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
vi) Words in the singular include the plural and in the plural include the singular.
vii) Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3, the Contract shall be subject to these terms and conditions. All other terms, conditions and warranties, whether implied by statute, common law or trade usage or expressed by the Buyer (including any terms and conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document), are hereby excluded, with the exception of conditions expressly accepted by the Seller in writing and conditions and other terms the exclusion of which is prohibited by law.
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 Any variation to these terms and conditions and any representations about the Goods shall have no effect unless set out in writing and signed by authorised representatives of each of the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller that is not set out in the Contract. Nothing in this condition shall exclude or limit the Seller’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Seller until a written acknowledgement of order is issued by the Seller or (if earlier) the Seller delivers the Goods to the Buyer. Save in respect of export sales, the minimum order value is £50.00. Orders valued below £50.00 may be accepted at the discretion of the Seller.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Seller despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date unless stated otherwise and provided that the Seller has not previously withdrawn it.
i) Taking delivery of the Goods or part thereof shall imply acceptance by the Buyer of these Conditions if it has not otherwise accepted the same.
ii) These conditions have effect in substitution for, and to the exclusion of any conditions put forward by the Buyer and no variation of them is valid unless in writing and authenticated by a duly authorised officer of the Seller.
4.1 Any dates specified by the Seller for delivery of the Goods are estimates and time for delivery shall not be made of the essence by notice. If no dates are specified, time for delivery shall be within a reasonable time.
4.2 Subject to the other provisions of these conditions the Seller shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Seller’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.3 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Seller’s negligence);
the Goods shall be deemed to have been delivered; and
the Seller may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.4 If the Seller delivers to the Buyer a quantity of Goods of up to 10% more or less than the quantity accepted by the Seller, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the shortfall or surplus and shall pay for such goods at the pro-rata Contract rate.
4.5 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.6 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
4.7 Failure to deliver the Goods in due time shall not entitle the Buyer
To refuse a delivery thereafter tendered or
To treat the contract as repudiated or
To claim damages in respect of such failure
4.8 Unless otherwise expressly agreed in writing by the Seller, the Seller shall deliver the Goods to the Buyer and delivery shall take place at the Buyer’s premises (“Delivery Point“)
4.9 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
5. SHORTAGE OR DAMAGE
The Buyer shall receive and unload the Goods and shall check the same for quantity and damage in presence of the Carrier. The Seller shall not be liable for loss or damage to Goods in transit unless:
5.1 such loss, shortage or damage is caused by the Seller’s negligence.
5.2 If there is shortage or damage the Buyer must so endorse the Carrier’s delivery document and must give separate written notice thereof to the Carrier and (where the Carrier is not the Seller) to the Seller within three days of delivery or, in the case on non-delivery, within a reasonable time after the date upon which the Goods would have been delivered in the ordinary course of events.
5.3 In the case of damage to Goods, the Buyer notifies the Seller’s customer services department and such Goods are returned to the Seller or by arrangements which are acceptable to the seller are made available for inspection within thirty days of delivery.
6.1 If after the receipt of any order for Goods before delivery, improvements are made to their design, on giving notice to the Buyer, the Seller may make reasonable alterations so such design provided that:-
the performance and quality of the altered goods are at least as high as those of the Goods ordered, and
no price variation is made except with the Buyer’s consent, and
delivery is not unreasonably delayed.
6.2 If in respect of any order for Goods that are manufactured to the Buyer’s specification the Buyer requests any amendment to such order, the Seller shall, at its discretion, charge the Buyer in respect of any such amendments at the rate of 25 % of the invoice value of such Goods.
6.3 If, as a result of the Buyer’s error, the Buyer wishes to return Goods to the Seller and the Seller is prepared to accept the return of such Goods, the Seller reserves the right to charge the Buyer a restocking charge at the rate of 25 % of the invoice value of such Goods. Any such returns shall be at the Buyer’s expense and the Goods must be unused and in good and saleable condition.
6.4 In the event that settlement is not made in full within 30 days a supplementary invoice of 10% of the purchase price will be issued to recover the settlement element of any discount given and be payable immediately.
6.5 Where applicable VAT will be invoiced at the appropriate ruling rate in accordance with legislation prevailing at the time of the transaction.
7.1 The Goods are at the risk of the Buyer from the time of delivery.
7.2 Ownership of the Goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of:
7.2.1 The Goods; and
7.2.2 All other sums which are or which become due to the Seller from the Buyer on any account.
7.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
7.3.1 Hold the Goods on a fiduciary basis as the Seller’s bailee;
7.3.2 Store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property;
7.3.3 Not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
7.3.4 Maintain the Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller.
7.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
7.4.1 Any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
7.4.2 Any such sale shall be a sale of the Seller’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
7.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
7.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his 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 (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, 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 the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
7.5.2 the Buyer 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 Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
7.5.3 The Buyer encumbers or in any way charges any of the Goods.
7.6 The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
7.7 The Buyer grants the Seller, 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.
7.8 Where the Seller 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 Seller to the Buyer in the order in which they were invoiced to the Buyer.
7.9 On termination of the Contract, howsoever caused, the Seller’s (but not the Buyer’s) rights contained in this condition 7 shall remain in effect.
7.10 During such time as the provisions of Clause 7.2 hereof apply, the Buyer shall be deemed to hold any monies received by it as a result of the hire of the Goods upon trust for the Seller and the Buyer shall pay all such monies forthwith to the Seller and such payment shall not be regarded as an advance upon any monies due hereunder.
7.11 No disputes arising under the contract nor delays beyond the control of the Seller shall interfere with prompt payment by the Buyer.
7.12 Time for payment shall be of the essence of the contract and if for any reason payment is not made on the due date the Seller may do any or all of the following:-
Determine the contract
Postpone the fulfilment of its obligations (c) Charge interest as detailed in Clause 7.4.
8.1 All accounts are strictly nett and payment of the price for the Goods is due in pounds sterling in full within 30 days of the date of invoice, or within any other time limit which may have been agreed to between the Seller and the Buyer, such agreement to be in writing and endorsed by an officer of the seller.
8.2 Payment for account Buyers is strictly monthly and to be made in accordance with invoice values. For non-account Buyers payments must be made in advance of delivery.
8.3 If the Buyer has no approved account it must submit two trade references satisfactory to the Seller and if the Buyer requires delivery before submission and approval of such references it must pay at the time of order.
8.4 The Seller reserves the right to levy an interest charge in the event of failure to pay by the due date. Such charge will be at the rate of 2% per month on overdue amount from the date payment is payable until the date payment is made.
8.5 When payment of any of the Seller’s invoices is overdue it may suspend performance of the Contract to which the invoice relates and/or of any other contract then in existence between the Buyer and the Seller for the period until the invoice is paid
8.6 The Seller reserves the right to change the terms of payment offered to the Buyer following a suspension of performance under the provision of clause 7.5 above
8.7 The Seller shall be entitled to invoice for the Goods at the time of dispatch from the Seller’s works or on delivery. When Goods are delivered in stages or by instalments, each delivery or instalment shall be invoiced as a complete assignment and be invoicable.
8.8 All payments payable to the Seller under the Contract shall become due immediately on its termination notwithstanding any other provision
8.9 No disputes arising under the contract nor delays beyond the control of the Seller shall interfere with prompt payment by the Buyer
8.10 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 Seller to the Buyer.
8.11 Time for payment shall be of the essence of the contract and if for any reason payment is not made on the due date the Seller may at its option do any or all of the following:-
Determine the contract
Postpone the fulfilment of its obligations
Charge interest as detailed in Clause 7.4.
9.1 The Seller agrees to replace parts or at its option repair Goods or parts of Goods manufactured by it which are proved to the Seller’s satisfaction to be defective (fair wear and tear or damage due to misuse or improper operation excepted) provided that such defect be notified in writing to the Seller within six months from the date of dispatch from the Seller’s works. Any such replacements shall include free delivery to the Buyer’s premises but shall exclude all other costs damages or expenses as provided by Clause 10.4 hereof.
9.2 This guarantee is given in lieu of the implied conditions contained in Sections 13, 14 and 15 of the Sale of Goods Act 1893 and any other condition or warranty implied by trade custom or usage. The Buyer hereby acknowledges:
That it purchased the Goods in a competitive market and that the bargaining strength of the Seller was in no way a relevant factor in the purchase of the Goods from the Seller
That the Buyer purchased the Goods in the course of business and not for private use
That the Buyer knows the extent of the meaning of this clause and limitations thereby imposed by it upon Sections 13, 14 and 15 of the Sales of Goods Act 1893
9.3 The Seller’s liability for all Goods or materials or services supplied by it but not of its origin shall be limited to the liability of the manufacturers or suppliers of such Goods and/or services to the Seller whether or not the extent of the manufacturer’s supplier’s or carriers’ liability is made known to the Buyer
9.4 Unless otherwise agreed in writing, no guarantee is given by the Seller and no liability is accepted in respect of the supply of second-hand or reconditioned Goods
9.5 The Buyer agrees that apart from the express terms contained herein or in the quotation or in any document expressly stipulated therein to form part of the contract and to be outside the provisions of this clause no statement or representation has been made by the Seller relating to the Goods supplied, or if any such statement or representation has been made the Buyer warrants that it understood it to be a statement of opinion only and did not rely on it.
9.6 The Seller’s liability, whether in respect of one claim or in the aggregate arising out of any contract shall not exceed the purchase price payable under the contract for such parts or parts in respect of which the Seller’s liability shall arise.
9.7 Except as specifically provided in these conditions and for liability for death or personal injury arising from acts or omissions proved to have been the responsibility of the Seller its servants or agents no liability is accepted for any direct or indirect costs, damages or expenses relating to damage to or loss of property of any person, firm or company or for any loss of profits or production arising out of or occasioned by any defect in or failure of goods or materials or parts thereof supplied by the Seller or the acts or omissions of the Seller or its servants or agents whilst on the Buyer’s premises.
9.8 Without prejudice to the foregoing the Seller accepts no responsibility for any drawing, design or specification and its submission or approval thereof is without obligation of any kind.
9.9 Without prejudice to the foregoing the Seller shall not be liable for any consequential loss or damage (including loss of profit) howsoever arising.
10. LIMITATION OF LIABILITY
10.1 Subject to condition 4, condition 5 and condition 8, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
any breach of these conditions;
any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
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 (WHETHER EXPRESS OR IMPLIED) AS TO QUALITY, CONDITION, DESCRIPTION, COMPLIANCE WITH SAMPLE OR FITNESS FOR PURPOSE (WHETHER STATUTORY OR OTHERWISE) OTHER THAN THOSE EXPRESSLY SET OUT IN THESE CONDITIONS ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
10.3 Nothing in these conditions excludes or limits the liability of either Party for:
death or personal injury caused by the negligence of the other Party or any of its officer employees or agents;
fraud or fraudulent misrepresentation; or
for any matter which it would be illegal for one Party to exclude or attempt to exclude its liability to the other Party.
10.4 Subject to condition 10.2 and condition 10.3:
the Seller’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 invoice value of Goods ordered by the Buyer in the twelve month period ending in the month immediately prior to the month in which any such fault or defect as aforesaid first became known to the Buyer; and
the Seller shall not be liable to the Buyer for any costs, claims, damages or expenses, whether arising out of or in connection with the Contract or any other breach of contract or statutory duty or any tortious act or omission;
of an indirect or consequential nature;
that are calculated by reference to profits, income, production or accruals or any loss thereof on a time or any other basis,
that are calculated by reference to a loss of business, depletion of goodwill or any other form of pure economic loss;
to the extent that the same has been or will be made good or is otherwise compensated without cost to the other Party.
11. BUYER’S SPECIFICATIONS
11.1 If the Buyer shall have asked the Seller to manufacture the Goods to any specifications or instructions submitted by the Buyer, the Buyer hereby warrants that such specifications or instructions shall not be in breach of or infringe any copyright, patent, registered or industrial design or any other intellectual property right or any fiduciary or confidential relationship.
11.2 The Buyer hereby indemnifies and undertakes to keep indemnified the Seller against all damages, penalties, costs and expenses (including legal and professional expenses) to which the Seller may be or become liable as a result of acting or relying on any specifications or instructions submitted by the Buyer and in respect of any breach or infringement or any alleged breach or alleged infringement of any copyrights, registered or industrial design or any other intellectual property right or any fiduciary or confidential relationship.
12. FORCE MAJEURE
12.1 The Seller shall not be liable or responsible for any loss or damage caused by delay in the performance or non-performance of any of its obligations hereunder where the same is occasioned by any cause whatsoever that is beyond the Seller’s reasonable control.
12.2 Non-exhaustive illustrations of such circumstances would be act of God; war (whether declared or not); civil disturbance; requisitioning; governmental (UK or otherwise) regulations, enactments, prohibitions or restrictions of any kind; strike, lock-out or industrial dispute (whether involving its own employees or those of any other person); difficulties in obtaining workmen or materials including (but not limited to) fuel, breakdown or machinery fire or accident; non-availability or delay of other transport.
12.3 Should any such event occur the Seller may cancel or initially suspend then cancel the contract without incurring any liability for any loss or damage whatsoever thereby occasioned.
13. EXPORT CONTRACTS
The following additional provisions will apply to any order for the sale of when Goods are exported outside the United Kingdom:-
13.1 Orders are accepted subject to Seller receiving any export licences.
13.2 Unless otherwise agreed in writing by the Seller the Buyer shall be solely responsible for the payment of all import duties, charges and assessments and the obtaining of any necessary import licences in respect of the Goods and Seller shall be under no liability whatsoever in respect of Goods exported without the necessary import licences.
13.3 Any term or expression which is defined by Incoterms (2010 Edition) shall have the same meaning in these Conditions, but if there is any conflict between Incoterms and these Conditions, the latter will prevail
13.4 Where goods are sold FOB ship the Seller shall be under no obligation to give Buyer notice in accordance with Section 32(3) of the Sale of Goods Act 1979, the goods shall be deemed to be at the Buyer’s risk and it shall be for the Customer to take out an appropriate contract of insurance
13.5 In respect of contracts where the Seller agrees to supply on a delivered duty paid basis all claims for the damage or loss in transit must be made in accordance with the instructions of Seller’s insurance company, details of which are given on the insurance certificate in the applicable shipping documentation.
14.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
14.2 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, void ability, 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.
14.3 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
14.4 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
14.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.6 The Seller may assign the Contract or any part of it to any person, firm or company.
14.7 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
15. GOVERNING LAW
This contract of sale is governed by the law of England. The High Court shall have jurisdiction to hear and determine any action in respect thereof and in the event of any such action being begun, the process by which it is begun may be served on the Buyer, its agent or attorney by sending or delivering the same to them or any of them at their registered office or other address wherever situated.