All proposals are given and orders are accepted by the Seller on the basis of the conditions of trading set out below (“the Conditions”) to the exclusion of any conditions of trading which the Buyer may purport to impose. The proposal shall not constitute an offer by the Seller to supply Goods and/or Services. Orders placed by the Buyer for Goods and/or Services shall be deemed to be an offer by the Buyer to purchase the Goods and/or services pursuant to these Conditions. No variation or addition to these Conditions by the Buyer shall be valid unless agreed in writing by the Seller. Insofar as not otherwise previously accepted by the Buyer, the Buyer’s acceptance of delivery of any Goods and/or Services from the Seller shall constitute acceptance of these Conditions. Time shall not be of the essence in the Seller’s performance under the Contract, unless the contrary is agreed in advance by the parties in writing.
2. SEPARATE CONTRACTS
Each shipment or delivery of Goods and or Services is to be treated as if it were made under a separate Contract. Failure to make any particular shipment or delivery shall not entitle the Buyer to refuse to accept further shipments or deliveries in respect of which orders have been made by the Buyer
Contracts may only be cancelled in whole or in part with the Seller’s written consent. Without prejudice to its other rights and remedies, the Seller may defer or cancel any further deliveries or instalments of Goods and/or Services due in the event that the Buyer shall:
• Fail to make any payment when it becomes due, or
• Enter into any composition or arrangement with its creditors, or
• Being an incorporated company, have an Administrator Receiver or a
Receiver or similar person appointed or shall pass a resolution for winding up or a Court shall make an order to that effect, or
• Not being an incorporated company, the Buyer shall have a sequestration order made against it, or
• Be in breach of any of these Conditions.
• All invoices are due for payment within 7 days of the date of its issue
• The seller reserves the right to charge interest on any overdue invoices at the rate of 5% over the Royal Bank of Scotland plc base rate prevailing at the date of default
• The seller shall be entitled (without prejudice to any other rights it may have) to suspend all services due to be provided by them to the buyer if any invoices remain unpaid, upon giving the buyer 7 days written notice of their intention to do so
• Time for payment shall be of the essence of the contract”
• The Price provided by the Seller in the proposal shall remain valid for a period of 30 days. If orders for Goods and/or Services are placed by the Buyer out with said 30 day period, the Buyer should seek a new proposal from the Seller in order to obtain a valid Price, otherwise the Seller shall be entitled to charge the rate(s) prevailing at the time of the Buyer’s order.
• Where an order is placed by a Buyer without a proposal having been given by the Seller, the Price shall be based on the Seller’s standard
rate(s) prevailing at the time of the Buyer’s order.
• All Prices given by the Seller are subject to the addition of taxes and duties such as VAT where applicable, at the appropriate rates ruling
at the date of delivery of the Goods and/or Services.
• The Seller has the right to issue a supplementary invoice in respect of any increase in tax or duty which may arise between the date of despatch and the date of delivery of Goods for which the Seller may be liable to the appropriate authority.
6. RISK AND BENEFICIAL OWNERSHIP
• The risk in the Goods passes to the Buyer upon delivery but equitable and beneficial ownership (i.e. title) shall remain with the Seller until full payment has been received (each Contract being considered as a whole), or until prior re-sale in which case the Seller’s beneficial entitlement shall attach to the proceeds of re-sale or to the claim for such proceeds. The Buyer shall be entitled to use Goods in the ordinary course of business whilst equitable and beneficial ownership rests with the Seller.
• Should the Goods become constituents of or be converted into other products while subject to the Seller’s equitable and beneficial ownership, the Seller shall have equitable and beneficial ownership in such other products as if they were solely and simply the Goods and accordingly the Condition immediately above shall, as far as appropriate, apply to such other products.
• Where equitable and beneficial ownership in Goods has not yet passed to the Buyer, the Seller is hereby granted permission at any time to inspect any delivered Goods and may at the Seller’s discretion, collect the said Goods from any place that the same are being kept upon the happening of any of the following events:
• The Price of the Goods being unpaid after 30 days of the date of the Seller’s invoice;
• The earlier making of a receiving order in bankruptcy against the Buyer;
• The calling of a meeting of Creditors of the Buyer under Section 98 of the Insolvency Act 1986 where the Buyer is a limited company;
• The making of any composition with creditors by the Buyer or entering into any deed of arrangement;
• The levying of execution against the Buyer’s Goods; and/or
• The Buyer, not being an incorporated body, is sequestrated.
• In the event of non-payment by the Buyer in accordance with the terms hereof or if the Buyer commits any act of bankruptcy or, if a limited company, satisfies any statutory ground for winding up by the court voluntarily (other than for the purpose of amalgamation or reconstruction) then without prejudice to any other remedies, the Seller may cancel or suspend further deliveries without prejudice to its other rights and the Seller or its agents may enter the Buyer’s premises to recover all Goods in respect of which property has not passed.
• The Buyer hereby authorises the Seller to enter into any premises belonging to the Buyer (by opening and closing lockfast premises in the course of any such entry, if necessary ) for the purpose of recovering delivered Goods.
Any claim which the Buyer may have against the Seller in respect of any of the following matters:
• Non-conformity of the Goods and/or Services with the Contract, or
• Damage to Goods in transit, or
• Partial loss of Goods in transit, shall be deemed to be waived and absolutely barred unless the Buyer submits the claim in writing to the Seller within 72 hours after delivery of the Goods and /or Services;
• The Seller shall have a right to inspect the Goods and/or Services within the following seven days.
• It is the Buyer’s responsibility to conduct an examination of the Goods and/or Services upon arrival or completion (respectively) at the Buyer’s premises or delivery address.
8. WARRANTIES AD LIABILITIES
• The Seller warrants that the Goods shall comply with the Seller’s specification for the Goods as outlined in the proposal, or such other specification(s) as may have been agreed in writing by the parties from time to time. The Seller does not warrant the fitness of the Goods for any particular purpose even though the purpose might be known to the Seller and no such warranty is to be implied from the name or description under which the Goods are sold.
• Subject as aforesaid all warranties, conditions and statements, express or implied, statutory or otherwise are excluded to the full
extent permitted by law.
• Except in respect of death or personal injury to human beings resulting from negligence, the Seller’s liability to the Buyer shall be limited to the Price of the Goods and/or Services which are the subject of the particular Contract (or part thereof) in respect of the consequences (direct and/or indirect including but not limited to death, injury, illness, disease, damage or financial or other loss) of any breach or non-performance of the Contract, howsoever caused or arising or of negligence or of any misrepresentation of any other delict or breach of statute on the part of the Seller or its agent.
• In no circumstances shall the Seller be liable for any consequential economic loss or damage no matter how arising.
• It is expressly understood that where the Buyer is not a Consumer all warranties, terms or conditions other than those given under these Conditions are hereby excluded to the full extent permissible by law.
The Buyer agrees to indemnify the Seller against any damages, losses, costs, claims, expenses incurred by the Seller in respect of any
claim brought against the Seller by any third party for:-
• any loss, injury or damage wholly or partly caused by the Goods or their use and/or the Services;
• any loss, injury or damage in any way connected with the performance of a Contract. Provided that this Condition will not require the Buyer to indemnify the Seller against liability arising as a result of the Seller's negligence.
• Dates given for despatch are quoted by the Seller in good faith but the Seller shall not be liable for failure to deliver on the specified date or dates.
11. FORCE MAJEURE
• If either party is affected by any event of Force Majeure, it shall immediately notify the other party of the nature and extent of that event. Neither party shall be deemed to be in breach of the Contract, or otherwise liable to the other, by reason of any delay in performance, or non-performance of any of its obligations under the Contract to the extent that such delay or non-performance is due to any event of Force Majeure of which it has notified the other party.
• If the Seller is at any time delayed or hindered in delivering the quantity of Goods and/or Services ordered by the Buyer, the Seller shall have the right to withhold, suspend or reduce deliveries of Goods and/or services to such extent as the Seller in its absolute discretion may think fit and shall not be required to acquire by purchase (or otherwise) additional quantities from alternative suppliers.
• No failure by the Seller to enforce any Condition shall constitute a waiver of its rights hereunder.
• 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.
These Conditions may be subject to amendment by the Seller from time to time by 21 days notice given by the Seller. In the event that the Buyer does not reject the amendment within that 21 day period the Buyer will be deemed to have accepted such amendment(s). For the purposes of this Condition only, notice may be given by the Seller by way of prominent wording on its’ website
Any notice required to be given in accordance with these Conditions (other than that outlined in the “Amendment” Condition at 13, above) shall be deemed to be served if sent by pre-paid first class post to the party to whom it is given and its last known address, in which case it shall be effected on the second day after posting.
15. PROPER LAW AND JURISDICTION
The construction, validity and performance of these Conditions and any dispute or claim arising out of or in connection with their subject
matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the Law of Scotland and the Seller and the Buyer hereby agree to submit to the exclusive jurisdiction of the Courts of Scotland to settle such disputes or claims. However, the Seller expressly reserves the right to take proceedings against the Buyer in any other court of competent jurisdiction.
*Please note these Terms and Conditions are set by Gilson Gray Solicitors and should not be reproduced or copied.