In these Trading Terms (a) “the Company" means Master PaintmakersLtd and its subsidiary Paint by Conran, (b) “the Customer” includes the person, firm, corporation, company or any other body whatsoever to whom the Company's goods or services are supplied and (c) “the goods" means goods supplied by the Company to the Customer.
2. Applicable Terms
All orders whether made in writing, by telephone or by other means are accepted, and all goods are supplied, by the Company subject only to the terms and conditions in these Conditions of Sale. Other terms and conditions (including any written terms and conditions of the Customer), apply only if they are confirmed in writing by the Company. These Conditions of Sale may only be varied by agreement in writing signed on behalf of the Company by a Director.
Prices shown on any quotation or guide price list are exclusive of value added tax and will be the Company's current prices at the time of dispatch of the goods. The Customer will pay for the cost of any insurance, carriage, freight and any other transit charges associated with delivery of the goods. Any quantity discounts of price given for bulk orders shall be given conditionally upon all instalments of such orders being accepted and duly paid for in full by the due dates.
4.1 The Company's standard account terms are cash with order..
4.2 The Customer will not be entitled by reason of any claim against the Company to withhold payment of the price of the goods or to claim any right of set off against any payment due to the Company under this or any other contract.
4.3 The granting of any credit by the Company to the Customer shall be at the Company's absolute discretion.
5. Information Sheets
5.1 The Customer will obtain from the Company all technical sheets relating to the goods and at all times observe and perform the advice contained therein including, without limitation, any recommendation as to shelf life and manner of storage, conveyance and application.
5.2 The Customer will use goods promptly after opening and will check samples of all goods before use or onward sale.
5.3 The Customer will ensure that the goods are used, processed, stored and conveyed by the Customer and its employees and or contractors such that the goods are kept safe and without risk to health and the Customer (without prejudice to any duty of care that it may have to any third party) will, and also will make sure that any such employee and or contractors of the Customer shall obtain and then at all times observe and perform the guidelines of the Company set out in Health and Safety leaflets relating to the goods.
6. Transfer of Risk and Property
6.1 Risk (that is, responsibility etc.) will pass to the Customer on delivery of the goods. Delivery means the time when actual possession of the goods is given to the Customer or a third party designated by the Customer for this purpose or, if earlier, the time when the Customer or such third party on behalf of the Customer is notified that the goods are available for collection.
6.2 Notwithstanding delivery of and the passing of risk in the goods to the Customer or anything implied to the contrary in these Conditions of Sale, ownership of the goods shall not pass to the Customer until full payment has been received by the Company for those goods. Until ownership passes, the Customer will hold the goods as bailee for the Company, will refrain from incumbering them in any way and will store them separately from any other goods on the Customer's premises, clearly marked as the Company's property. Until ownership passes, the Customer will inform the Company without delay of any interference by a third party with the Company's interest in the goods and in the case of distraint will at the same time enter a plea of opposition in the Company’s name with the distraining creditor.
6.3 Notwithstanding the above or anything to the contrary implied in these Conditions of Sale, the Customer may (subject to Clause 7) use or sell the goods in the ordinary course of its business, but may not otherwise use, deal with, sell, part with possession of, or otherwise dispose of the goods until title to them has passed to the Customer as aforesaid. As between the Customer and any buyer from them, any such sale shall be affected by the Customer as principal and not as agent; but as between the Customer and the Company the Customer will have a fiduciary duty to account to the Company for the proceeds of any such sale up to the total amount outstanding to the Company for the goods sold by the Customer, and pending such accounting shall hold such proceeds in a bank account separate from other monies of the Customer on trust for the Company. The Customer will if requested by the Company promptly confer upon the Company and its Bankers such authority as may be necessary to allow the Company to debit directly such amounts as from time to time become due to it from such bank account.
7.1 If the Customer fails to take delivery of the goods or any instalment thereof or fails to make any payment for the goods on the due date or if any event of insolvency ("Event") occurs in relation to the Customer (that is, if the Customer enters into any composition or arrangement with its creditors, or being a company passes a resolution to wind up itself or has a winding up order made against it or, not being a company commits an act of bankruptcy) the Company may (without prejudice to any other right or remedy) cancel any delivery not so taken and or suspend or cancel any further deliveries, both in respect of the contract or series of contracts to which such failure (if any) relates and in respect of any other contract for the delivery of goods to the Customer and may repossess and dispose of any goods in which ownership has not passed to the Customer.
7.2 The Customer gives to the Company irrevocable authority without notice to enter the Customer's premises for the purpose of collecting and removing the goods and the Customer will compensate the Company for all damages and consequential losses arising therefore including, without limitation, any expenses of carriage, storage and disposal of goods.
7.3 The Customer warrants that no Event (as defined in Sub-Clause 7.1) has occurred in relation to the Customer before entering the contract.
8. Force Majeure
If the Company is prevented from making any delivery of goods which are the subject-matter of any contract either at all or within any estimated delivery time owing to circumstances not attributable to the wilful default of the Company, any such delivery may be cancelled or suspended by the Company giving notice thereof to the Customer, and the Company shall not be liable for any loss, damage or expense arising out of such non-delivery or delayed delivery; provided always that the Customer's outstanding obligations in relation to any part of the contract which has already been performed by the Company shall remain and not be discharged by such non delivery or delayed delivery.
9. Rights, Limitations and Exclusions
9.1 The Customer may rely upon quantitative findings given in writing by the Company pursuant to tests carried out at the request of the Customer and for which a specific charge is made by the Company and paid by the Customer to the extent that such tests relate to the batch of goods which are the subject-matter thereof. Save as aforesaid, the Company accepts no responsibility for any statement, quotation or information in any form whatsoever (including any contained in the Company's leaflets and brochures) or any other representation whatsoever, made or given by the Company, whether made or given before or after the acceptance of any order by the Company and the Customer shall not be entitled to claim any damages or rescind any contract by reason of any such representation. No such findings, statement, quotation, information or other representation whatsoever shall constitute an offer to sell.
9.2 The Company will not be liable to the Customer for any costs arising from incorrect use of goods or from failure to adequately check the suitability of goods or for any costs incurred in rectification after application.
9.3 The Company reserves the right to alter any product line at any time without notification to the Customer and no representation or warranty is given that the goods are or will be identical to any goods of the Company’s same stock reference which may have been previously sold to the Customer.
9.4 The terms and conditions under which orders are accepted and goods are supplied by the Company are solely as stated in Clause 2 hereof any duty of care or contract collateral hereto is hereby extinguished and any implied terms (whether the same be implied by law or statute) are hereby excluded (save for section 12 of the Sale of Goods Act 1979). No words, acts or omissions by either the Company or the Customer shall constitute a waiver of any of their respective rights arising out of these terms and conditions or any variation of them, unless confirmed in writing. Any inspection or substitution or rectification of or any advice or assistance given in relation to goods by the Company at any time shall be deemed to be carried out or given without constituting any waiver or variation of these terms and conditions or any promise or any acceptance of liability by the Company.
9.5 The Company shall in no circumstances be liable for
(i) any loss damage or expense caused by a breach by the Customer of any of its obligations under Clause 5 hereof, or by any incorrect use of the goods or by any failure adequately to check the goods (and should the Company be liable to any third party for such loss, damage or expense, the Customer will indemnify the Company in respect of such liability).
(ii) any loss of profits or other consequential loss, or any costs incurred in the removal of any product supplied by the Company and rectification after its removal.
9.6 Subject to section 2(1) of the Unfair Contract Terms Act 1977, in no circumstances shall the Company's liability arising out of or in connection with goods supplied to the Customer whether the same be liability arising in contract or tort (including negligence) exceed the invoice price (less any discount) of the goods which are subject of the claim.
9.7 The Customer acknowledges to the Company that the Customer considers the exclusions and restrictions of liability of the Company for breach of duty in contract and in tort (including negligence) and otherwise contained in these Conditions of Sale to be reasonable in view of, inter alia, the availability of products similar to the goods from sources other than the Company and recognizes that it is in a better position to insure against the consequences of any defect in the goods or delay in their delivery than is the Company.
10. Third Party Claims
The Customer will indemnify the Company against any third party claims arising in relation to the goods for death or personal injury and or damage to property or economic loss whether made in contract and or in tort (including negligence) and or pursuant to statute.
11. Third Party Rights
The Company shall not be liable for any loss, damage, claim, cost or expense arising out of any claim for infringement or alleged infringement of any patent, trade mark, registered design or copyright or other proprietary right whether in the United Kingdom or elsewhere resulting from the design, manufacture, use, supply and re-supply of goods or resulting from the use or supply of services. Intellectual property (if any) in the goods shall remain the property of the Company.
12.1 Accounts in respect of any export contract shall be expressed in pounds sterling. Payment of any export contract is to be made in full, inclusive of any bank charges incurred, prior to delivery of the goods, by the Customer establishing a confirmed irrevocable documentary credit at a London bank in terms satisfactory to the Company. Any expression of prices in another currency shall be for guidance only.
12.2 The performance of this contract by the Company shall be conditional upon the granting and issuing of import and export licences or permits, wherever necessary, by competent authorities. The obtaining of any necessary licences or permits and the payment of any import and export levies, charges, dues, imposts and penalties shall be the responsibility of the Customer, and the Company shall not be liable for any expense or loss caused by delay in obtaining such licence or permit, or (if it should be necessary) the renewal thereof or in paying such monies.
Any property of the Customer in the possession of the Company for research, development, treatment or evaluation shall be so kept at the risk of the Customer who will where appropriate obtain proper insurance thereof.
14. In any case where these Conditions of Sale conflict with any provision of the Sale of Goods Act 1979 or any subsequent modification or re-enactment thereof, these Conditions of Sale shall prevail.
15. Any contract shall be between the Company and the Customer as principals. The benefit of any contract for the sale or supply of goods or services shall not be transferred to any third party without the consent of the Company.
16. These Conditions of Sale shall be governed and construed in accordance with the laws of England and the parties submit to the non-exclusive jurisdiction of the English courts.
17. Notices given pursuant to these Conditions of Sale shall be given in writing and sent by first class pre-paid post to the address of the other party.
18. These Conditions of Sale may only be varied by agreement in writing signed on behalf of the Company by a Director or an Executive. Any written variation purporting to be made by an Executive shall be binding upon the Company only if it includes a statement identifying a board resolution of the Company conferring general authority upon such Executive to make variations to these Conditions of Sale.
19. These Conditions of Sale shall be governed and construed in accordance with the laws of England and the parties submit to the non-exclusive jurisdiction of the English courts.
20. Notices given pursuant to these Conditions of Sale shall be given in writing and sent by first class pre-paid post to the address of the other party.