Terms & Conditions Brouns & Co Ltd - Paint and Ancillary Products
1.1 The definitions and rules of interpretation in this condition apply in these conditions. Buyer: the person, firm or company who purchases the Goods from the Company.
Company: Brouns & Co Ltd, company registration number 07768715 whose registered office address is Highfield, Selby Road, Garforth, Leeds, LS25 2AG.
Delivery Point: the place where delivery of the Goods is to take place under condition 4.1. Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2 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.
1.3 Words in the singular include the plural and in the plural include the singular. 1.4 A reference to one gender includes a reference to the other gender. 1.5 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1 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 under any purchase order, confirmation of order, specification or other document).
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 These conditions apply to all the Company's sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by the Director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company's liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from the Company 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 Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
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 Company despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 21 days only from its date, provided that the Company has not previously withdrawn it.
3.1 The quantity and description of the Goods shall be as set out in the Company's quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's 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 this is not a sale by sample.
3.3 Whilst every effort is made to display as accurately as possible the colour of our goods, we cannot guarantee that your monitor’s display of any colour will accurately reflect the colour of the goods on delivery. If in doubt you are advised to examine actual samples of the colour before placing your order.
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Buyer’s place of business or nominated place of delivery.
4.2 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.3 The customer undertakes to accept responsibility for providing safe and sufficient storage facilities for the goods and will indemnify the vendor against any losses, damages or costs arising out of a breach of this condition.
4.4 Subject to the other provisions of these conditions the Company 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 Company's negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.5 If for any reason the Buyer fails to 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:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company's negligence); (b) the Goods shall be deemed to have been delivered; and (c) the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.6 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
4.7 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.8 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.
Except as otherwise expressly stated and contracted The Company reserves the right to vary prices and payment dates at any time. Prices quoted in foreign currency may be adjusted at any time in relation to variations in the appropriate exchange rate and are ex-works The Company premises at Harrogate, England. The price does not include the cost of freight carriage, packing or insurance, which unless otherwise shown on the invoice and will be additionally charged to the buyer. All orders are subject to availability. We reserve the right to refuse to accept any order where there is a material error in the description of the good or the advertised prices.
6.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
6.2 The Company warrants that (subject to the other provisions of these conditions) on delivery the Goods shall:
(a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979; (b) be reasonably fit for purpose; and (c) be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Company.
6.3 The Company shall not be liable for a breach of the warranty or any of the warranties in condition
6.4 unless: (a) the Buyer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within 3 days of the time when the Buyer discovers or ought to have discovered the defect; and (b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company's cost for the examination to take place there.
6.5 The Company shall not be liable for a breach of the warranty or any of the warranties in condition 6.6 if: (a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or (c) the Buyer alters or repairs such Goods without the written consent of the Company.
6.7 Subject to condition 6.3 and condition 6.4, if any of the Goods do not conform with the warranty or any of the warranties in condition 6.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company's expense, return the Goods or the part of such Goods which is defective to the Company.
6.8 If the Company complies with condition 6.5 it shall have no further liability for a breach of the warranty or any of the warranties in condition 6.2 in respect of such Goods.
Without prejudice to the above:
6.9 The Company reserves the right to refuse to accept at its own discretion any repeat orders for specialised goods made specifically to the Buyers requirements.
The Company does not warrant that instalments of or batches of repeat orders of any product shall comply with the specification or colour match of any other instalment batch or order. In the event that there shall be any said variation of specification or colour match the liability of The Company shall be limited to the invoice price of the instalment batch or order concerned. It is the Buyer’s absolute obligation to specify clearly the product being ordered and the specification required. The Company accept no liability for the failure of the Buyer to order the correct product or specification. Wherever appropriate The Company will endeavour to assist Buyers with technical advice and specifications but the Buyer shall at all times be responsible for ordering the correct product or specification and deciding upon fitness for purpose of the product.
7. PATENTS & TRADEMARKS & HEALTH & SAFETY
No Representation, Warranty or Indemnity is given by The Company that the goods do not infringe any Letter, Patent, Trade Mark, Registered Designs or other industrial rights. In compliance with the Health & Safety at Work Act 1974, The Company’s Product Labels give (as required by the Statutory Regulations for the labelling of Paint, Ink and other ancillary products) information of known hazards associated with the product and sales literature states their properties. However almost all Products may be hazardous in certain conditions if handled and applied without due care. The Company’s resources are available on request to provide any information Buyers may require in order to meet their obligations under the Safety at Work Act 1974. The Buyer shall after delivery of the goods be solely responsible for their safe and satisfactory storage and shall be responsible for complying with any statutory or other requirement with regard to the storage use or handling of the goods. The Buyer shall indemnify The Company against any claim by any Third Party caused by products delivered by The Company proving not to be fit and suitable for such Third Party’s purposes for any reason.
The giving of an order by the Buyer to The Company for any product shall constitute an unqualified acceptance by the Buyer that if The Company accepts the Order, sale supply or delivery of such products by The Company will be governed solely by these Conditions of Sale. No variation of these Conditions of Sale and no oral stipulations or representations shall be binding on The Company, unless expressly agreed to in writing and signed by a Director of The Company on its behalf.
8.1 The Company shall make all reasonable efforts to meet ‘a delivery date’. Time shall not be of essence and so long as any circumstances whatsoever may prevent hinder or delay any delivery.
8.2 The Company shall not be bound to keep the same and shall not be liable in any manner whatsoever for failure or delay whilst so prevented hindered or delayed.
8.3 The Company reserves the right to deliver by installments. The buyer shall inspect all Goods on delivery and unless the buyer takes the following actions the buyer will be deemed to have accepted the delivery in full contractual satisfaction of the order:
8.3.1 Buyer shall endorse Carrier’s note appropriately.
8.3.2 Buyer shall advise The Company immediately by telephone and confirm such call in writing to The Company.
8.3.3 Buyer shall send full particulars of claim to The Company in writing within 3 days after delivery.
8.4 In case of non-delivery of a consignment, the Buyer shall advise The Company within 10 days after date of invoice.
8.5 The Buyer shall be bound to pay for all goods, notwithstanding any alleged non-delivery or shortage of goods, if the foregoing conditions have not been complied with.
Where the Buyer orders standard or non-standard products which are specifically tinted, manufactured or produced to his unique requirements, the Buyer shall accept the supply or a quantity whether more or less within 10% of the stipulated amounts in such circumstances the Invoice value of the goods shall be subject to a corresponding adjustment.
9. TITLE & RISK
9.1 THE RISK in the Goods shall pass to the Customer as from the time when the Goods are either:
9.1.1 Where the Customer or his nominee or representative (which the latter term shall include a carrier nominated by the Customer) collects the Goods ex-Company’s works delivery shall be effected by delivery of the Goods to the customer or his nominee or representative ex-Customer’s works; or
9.1.2 Delivery to the Customer’s premises.
9.2 TITLE AND PROPERTY in the Goods shall not pass to the Customer until whichever of the following events first occurs and until such time the goods shall remain the sole and absolute property of The Company.
9.2.1 The customer shall have paid to The Company the full amount of the agreed price together with the full price of any other goods the subject of any other agreement with The Company entered into before or after the Agreement in question.
9.2.2 The Customer in the ordinary course of its business selling the Goods in which case title to the Goods shall be deemed to have passed to the Customer immediately prior to delivery of the Goods to the Customers customer; and
9.2.3 The Company waiving its rights under this Clause in respect of specific Goods shall forthwith vest in the Customer.
9.3 Until property in the Goods passes the Customer shall hold the Goods as bailee for The Company.
9.4 Notwithstanding that property in the Goods has not yet passed to the Customer the Customer may nevertheless in the ordinary course of its business sell the Goods.
9.5 Until the property in the Goods shall have passed to the Customer any of the Goods remaining in the possession of the Customer shall be as far as possible kept separate and distinct from all other property of the Customer or of any persons and stored in such a way as to be clearly identified as belonging to The Company.
9.6 The Company may at all times revoke the power of sale contained in Condition 4.4 above by notice to the Customer if the Customer is in default for longer than seven days in the payment of any sum whatsoever due to (whether in respect of Goods or any goods supplied at any time by it to the Customer or for any other reason whatsoever) or The Company has a bona fide doubt as to the solvency of the Customer.
9.7 The Customers power of sale as contained in Condition 4.4 above shall automatically cease if the buyer (being a Company) enters into liquidation whether compulsorily or voluntarily or has a receiver appointed over all or any part of its assets; or if the Customer (not being a Company) becomes bankrupt or insolvent or if the Customer enters into any arrangement with creditors or takes or suffers any similar action in consequence of debts.
9.8 The Customer power of sale contained in condition 4.4 above shall automatically cease on the happening of any event or default which would cause The Company reasonably to consider that its Title to the Goods may adversely affect and the Customer shall notify The Company forthwith of the happening of any such event or default.
The Company shall have the right in its absolute discretion and without assigning any reason therefore and notwithstanding any contract the Customer may have made with a third party to terminate without notice any agreement to make supplies to any person or to refuse or limit the amount of credit to be given to any person and to withhold supplies to any person.
11. LIABILITY FOR ACCIDENTS & DAMAGE
The Company and its servants or agents (on whose behalf The Company hereby contracts) shall not be liable to the Buyer for loss injury damage or claim consequential or direct or natural of any kind whatsoever arising out of or in connection with the execution of this contract or arising out of or in connection with the use of goods supplied by The Company save and except where such loss injury damage or claim be occasioned by the negligence of The Company or of any employee of The Company.
This Contract is personal to the Buyer and may only be assigned with the written consent of The Company.
In the case of purchase by persons or companies not holding trading accounts, all payments shall be completed in advance of despatch of goods
14. CANCELLATION OF GOODS
Orders for Products may not be cancelled or suspended without The Company’s prior written consent. Any cancellation or suspension of an order with The Company does not agree to shall be on the condition that the Buyer shall indemnify The Company against any loss incurred wholly or in part by the cancellation or suspension. Specifically cancellations of orders for non-stock lines will not be accepted once the paints have commenced manufacture.
15. RETURN OF GOODS
No Goods are supplied on a sale or return basis. There should be no liability on The Company to accept returned Goods. Any Goods returned by a Buyer or anybody acting on his behalf will remain the risk of the Buyer and The Company for the avoidance of doubt confirms that no liability of any description is accepted in respect of returned Goods.
16. FORCE MAJEURE
If during the currency of any contract agreement or order entered into between The Company and the Customer, The Company is delayed or hindered in or prevented from performing any or all of its obligations hereunder by war, road blocks, rail blocks, strikes, whether official or unofficial, lock out, picketing or blocking (secondary or otherwise) or any action which could reasonably be described as in the furtherance of or in any way related to an industrial dispute or grievance, riots, civil commotions, epidemic, fire, explosions, accident, flood, plant breakdown, or any other cause (whether or not of the same nature as the foregoing) beyond the reasonable control of The Company then The Company shall not in consequence thereof be under any liability in contract in relation to the contract agreement or order and The Company may if it deems so desirable upon giving notice to the Customer partially or wholly suspend deliveries of any goods or preferments of any works during the continuance of such causes and the Delivery Date or Dates shall be correspondingly extended.
17. GOVERNING LAW
This Agreement will be governed by and construed in accordance with English Law. The Buyer irrevocably submits in respect of all matters and disputes arising out of this Agreement to the exclusive jurisdiction of the English Courts.