1. Interpretation
1.1. In These Conditions
Ø “Buyer” means the person who accepts a quotation, collection or delivery of the Seller for the sales of the Goods or whose order for the Goods is accepted by the Seller.
Ø “Goods” means the goods which the Seller is to supply in accordance with these Conditions.
Ø “Services” means the services which the Seller is to provide in accordance with these Conditions.
Ø “Seller” means East Lodge Farm, of Fox Lane, Bromsgrove. B61 7EF.
Ø “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
Ø “Contract” means the contract for the purchase of and sale of the Goods.
Ø “Writing” includes, but is not limited to, letter, cable, fax, email or comparable means of communication.
1.2. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3. The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the Sale
2.1. The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written or verbal quotation or communication of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation or communication is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2. The Seller shall provide and the Buyer shall purchase the Services in accordance with any written or verbal quotation or communication of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation or communication is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.3. No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.4. The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations that are not so confirmed.
2.5. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.6. Any typographical, clerical, or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller
3. Orders and Specifications
3.1. No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by the Seller’s authorised representative.
3.2. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3. The quantity, quality and description of and any specification for both the Goods and or Services shall be those set out in the Seller’s quotation and or communication (if accepted by the Buyer) or the Buyer’s order or communication (if accepted by the Seller).
3.4. The Seller reserves the right to make any changes in the specification of the Goods and or the Services which are required to conform with any applicable safety or other statutory requirements or, where the Goods and or Services are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
4. Price of the Goods
4.1. The price of the Goods and or the Services shall be the Seller’s quoted or communicated price. All prices quoted are valid for 48 hours only or such lesser period as shall be stated by the Seller on the face of the relevant quotation or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2. The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods and or the Services to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture) or to any change in delivery dates, quantities or specifications for the Goods and or the Services which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3. Unless otherwise stated or agreed, the price is exclusive of any applicable value added tax that the Buyer shall be additionally liable to pay to the Seller.
5. Terms of Payment
5.1. Subject to any special terms agreed in Writing between the Buyer and the Seller the Seller shall be entitled to invoice the Buyer for the price of the Goods and or the Services at any time before or after delivery of the Goods and or the Services.
5.2. All Invoices are payable as per the payment terms set out and contained on the invoice supplied by the Seller to the Buyer. The Buyer shall pay all invoices without any other deductions notwithstanding that delivery may not have taken place and the property in the Goods has not been passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to;
5.3.1. Cancel the Contract or suspend any further deliveries or collections to the Buyer;
5.3.2. Appropriate any payment made by the Buyer to such of the Goods and or the Services as the Seller may think fit (notwithstanding any purported appropriation by the Buyer) and;
5.3.3. Charge the Buyer interest (both before and after any judgement) on the total amount unpaid, at the fixed rate of 21% per annum until payment of any outstanding balance is either received in full or recovered via 3rd party means.
5.4. In the event that the Seller shall cancel the contract under the provisions of Clause 5.3.1 above the Buyer shall indemnify the Seller in full against al loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation. Without prejudice to the generality of the foregoing, at the option of the Seller, the Seller shall be entitled to require the Buyer to pay to the Seller by way of liquidated damages an amount equivalent to 100% of the invoice value of the contract so cancelled. In the event of the Seller so requiring, the Buyer shall pay such amount to the Seller (without any deduction) within five working days of receiving from the Seller written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Seller as a result of such cancellation
6. Delivery
6.1. Delivery of the Goods shall be made either, by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2. Any dates quoted for delivery of the Goods and or Services are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods and or the Services may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. The Seller shall be entitled to make part delivery of the Goods and or the Services at any time.
6.3. If the Buyer fails to take delivery of the Goods or fails to give adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may;
6.3.1. Store the Goods until actual delivery and charge the Buyer for reasonable costs (including insurance) of storage; or
6.3.2. Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the contract.
7. Risk and Property
7.1. Risk of damage to or loss of the Goods shall pass to the Buyer;
7.1.1. In the case of the Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2. In the case of the Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivered of the Goods.
7.2. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and payment in full of all sums due from the Buyer to the Seller whether under the Contract or by virtue of any other liability of the Buyer to the Seller.
7.3. For the avoidance of doubt, nothing contained in this Clause 7 shall entitle the Buyer to return any of the Goods to the Seller save as expressly provided in these terms and conditions or as expressly agreed in writing between the Seller and the Buyer.
8. Warranties and Liability
8.1. Subject to the conditions set out below the Seller warrants that the Goods and or the Services will correspond with the specification subject to such factors as would normally be expected.
8.2. The above warranty is given by the Seller subject to the following conditions;
8.2.1. the Seller shall be under no liability in respect of any defect in the Goods and or Services arising from any incorrect information or request from the Buyer.
8.2.2. the Seller shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alternation or repair of the Goods without the Seller’s approval.
8.2.3. the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
8.2.4. the above warranty does not extend to Goods not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.3. Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4. Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 the statutory rights of the Buyer are not affected by these Conditions.
8.5. Any claim by the Buyer which is based on any defect in the quality or condition of the Goods and or the Services or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 14 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and or the Services and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods and or Services had been delivered in accordance with the Contract.
8.6. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions the Seller shall be entitled to replace the Goods or (refund to the Buyer the price of the Goods) (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.7. Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
8.8. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control;
8.8.1. Act of God, explosion, flood, tempest, fire or accident;
8.8.2. war or threat of war, sabotage, insurrection, civil disturbance, or requisition;
8.8.3. acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.8.4. import or export regulations or embargoes;
8.8.5. strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.8.6. difficulties in obtaining raw materials labour, fuel, parts or machinery;
8.8.7. power failure or breakdown in machinery.
9. Insolvency of the Buyer
9.1. This clause applies if;
9.1.1. the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
9.1.2. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
9.1.3. the Buyer ceases, or threatens to cease, to carry on business; or
9.1.4. the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2. If this clause applies, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered, but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10. Data Protection Act 1998
10.1. We may transfer information about you to our financiers, who;
10.2. may use, analyse and assess information about you, including the nature of your transactions, and exchange such information with other members of their group of companies and others for credit or financial assessment, market research, statistical analysis, insurance claim, underwriting and training purposes and in making payments and servicing their agreement with us;
10.3. from time to time, may make searches of your record at credit reference agencies where your record with such agencies may include searches made and information given by other businesses; details of their searches will be kept by such agencies but will not be seen by other organisations that may make searches;
10.4. may give information about you and your indebtedness to the following;
10.4.1. our or their insurers for underwriting and claims purposes.
10.4.2. any guarantor or indemnifier of your or our obligations to enable them to assess such obligations.
10.4.3. their bankers or any advisers acting on their behalf.
10.5. We may monitor and/or record phone calls for training and/or security purposes.
11. General
11.1. 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 registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party given the notice
11.2. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.4. The contact shall be governed by the laws of England.
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