Trade Account Conditions of Sale

BRITANNIA PAINTS LIMITED - CONDITIONS OF SALE

In these Conditions the following expressions shall have the meanings set opposite them:

Company: Britannia Paints Limited
Customer: The person, firm or company to whom a quotation, offer or tender is addressed or whose order is accepted by the Company and (where the context so requires) shall include any architect, engineer or other professional or authority employed by the Customer to whose instructions the Goods are supplied or related services are carried out.
Goods: to include goods and/or related services or any part thereof of any description to be supplied or performed under the Contract.
Order: the Order or Orders placed by the Customer upon the Company.
Contract: the contract between the Company and the Customer arising on acceptance of the Order subject to these Conditions of Sale.

FORMATION OF CONTRACT
1. All quotations, offers and tenders are made and all Orders are accepted subject to the following Conditions. Subject only to Condition 1.2 all other terms, Conditions or warranties whatsoever are excluded from any contract between the Company and any Customer or any variation thereof unless expressly accepted in writing by a director or other authorised representative of the Company.
2. In the event of a conflict between these Conditions and the Company’s express terms of any quotation or acknowledgement of Order then such express terms shall prevail.
3. Quotations, offers and tenders issued by the Company are for the whole of the Goods referred to in them and the Company reserves the right to refuse acceptance of any Order which relates to only part of the Goods forming the subject of a quotation, offer or tender.
4. Quotations shall be available for acceptance for a maximum period of 30 days from date of issue and may be withdrawn by the Company at any time prior to the Customer’s acceptance by written or oral notice.
5. If any statement or representation has been made to the Customer by the Company, or its officers, employees or agents upon which the Customer relies (other than in the document(s) enclosed with the Company’s quotation or acknowledgement of Order), then the Customer must set out that statement or representation in a document to be attached to or endorsed on the Order and in any such case the Company may confirm, reject or clarify the point and submit a new quotation, if appropriate. Under no circumstance shall the Company be responsible for, or be held liable in respect of, any statement or representation relied upon be the Customer which is not attached to or enclosed on the Order and subsequently confirmed in writing by the Company.
6. Unless otherwise agreed in writing all trade terms shall be interpreted in accordance with INCOTERMS current at the time the Order is accepted.
PRICES
1. Unless otherwise agreed in writing, all prices are quoted exclusive of delivery and exclusive of VAT.
2. Unless otherwise agreed in writing, the Company will charge carriage on all Orders for Goods at the Company’s then standard prices.
3. Where, at the Customer’s request, Goods are forwarded by any means involving a higher carriage charge than would be incurred by use of the Company’s usual means of carriage then the additional charge will be paid by the Customer.
4. Where the Company delivers the Goods the Customer shall be liable to the Company for carriage costs and any demurrage costs incurred by the Company in the event of vehicles being unduly delayed at the designated point of delivery.
5. The prices payable for the Goods may be subject to an annual price increase by the Company to such amount as the Company in its discretion shall decide. All increases shall be notified in writing to Customers who have placed Orders in the 12 months prior to such increase.
PAYMENT
1. Unless otherwise agreed by the Company in writing and subject to satisfactory trade references, payment shall be due and payable 30 days after the date of invoice.
2. The Company shall be entitled to submit its invoice with its delivery advice note or at any time afterwards save that where delivery has been postponed at the request of or by the default of the Customer then the Company may submit its invoice at any time after the Goods are ready for delivery or would have been ready in the ordinary course but for the request or default on the part of the Customer.
3. Where Goods are delivered by instalments the Company may invoice each instalment separately and the Customer shall pay such invoices in accordance with these Conditions.
4. No disputes arising under the Contract nor delays beyond the reasonable control of the Company shall interfere with prompt payment in full by the Customer.
5. In the event of default in payment by the Customer the Company shall be entitled, without prejudice to any other right or remedy:
  1. to suspend all further deliveries on this Contract and on any other contract or contracts between the Company and the Customer then current without notice; and
  2. to charge interest on any amount outstanding at the rate of 5% per annum above the Base Rate of Barclays Bank plc such interest being charged as a separate, continuing obligation not merging with any judgment and/or
  3. to serve notice on the Customer requiring immediate payment for all Goods supplied by the Company under this and all other contracts with the Customer whether or not payment is otherwise due or invoiced.
DELIVERY
1. Time for delivery is given as accurately as possible but is not guaranteed. The Customer shall have no right to damages or to cancel the Contract for failure for any cause to meet any delivery time stated.
2. The date of delivery shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Customer. Any delays or alterations by the Customer in design, specifications or quantities required may result in delay in delivery.
3. Failure by the Customer to take delivery of or to make payment in respect of any one or more instalments of Goods delivered under the Contract shall entitle the Company to treat the Contract as repudiated by the Customer either in whole or in part.
4. The Company will endeavour to comply with reasonable requests by the Customer for postponement of delivery but shall be under no obligation to do so. Where delivery is postponed, otherwise than due to the default by the Company, the Customer shall pay all costs and expenses, including a reasonable charge for storage and transportation so occasioned, and payment for the Goods shall be made in accordance with these Conditions. The Company will not be liable for unloading the Goods at the designated point of delivery or for placing them in position on site, except by prior agreement in writing.
RISK AND TITLE
1. Risk shall pass to the Customer so that the Customer is responsible for all loss, damage or deterioration to the Goods: -
  1. if the Company delivers the Goods by its own transport, or in accordance with a specific contractual obligation arranges transport for the Goods, at the time when the Goods arrive at the designated place of delivery, or
  2. in all other circumstances, at the time when the Goods leave the premises of the Company.
2. Title to the Goods shall only pass to the Customer upon the happening of any one of the following events: -
  1. the Customer has paid to the Company all sums (including any default interest) due from it to the Company under this Contract and under all other contracts between the Company and the Customer including (for the avoidance of doubt) any sums due under contracts made after this Contract whether or not the same are immediately payable and under all contracts between the Company and any associate or subsidiary company of the Customer or any company under the ultimate control of the same parent company as has ultimate control of the Customer, or
  2. when the Company serves on the Customer notice in writing specifying that title in the Goods has passed.
3. The Company may recover Goods in respect of which title has not passed to the Customer at any time and the Customer hereby licenses the Company, its officers, employees and agents to enter upon any premises of the Customer for the purpose either of satisfying itself that Condition 5.4 below is being complied with by the Customer or of recovering any Goods in respect of which title has not passed to the Customer.
4. Until title to the Goods has passed to the Customer pursuant to these Conditions it shall possess the Goods as fiduciary agent and bailee of the Company. If the Company so requires, the Customer shall store the Goods separately from other goods and shall ensure that they are clearly identifiable as belonging to the Company.
CANCELLATION
1. Cancellation will only be agreed to by the Company on Condition that all costs and expenses incurred by the Company up to the time of cancellation and all loss of profits and other loss or damage resulting to the Company by reason of such cancellation will be paid forthwith by the Customer to the Company. Goods returned to the Company without the Company’s written consent will under no circumstances be accepted for credit.
VARIATION
1. All variations required by the Customer and accepted by the Company shall be agreed in writing and the price, if not agreed prior to the manufacture or delivery of the Goods, shall be based on appropriate contracts prices (if any) plus escalation in respect of inflation or any other appropriate indeces and increased costs of materials and labour and any dates quoted for delivery shall be extended accordingly.
SPECIFICATION
1. The Company reserves the right to alter or change dimensions or composition of the Goods supplied to conform to applicable standards or laws or otherwise within reasonable limits having regard to the nature of the Goods.
2. The information contained in the advertising, sales and technical literature issued by the Company may be relied upon to be accurate in the exact circumstances in which it is expressed, otherwise any illustrations, performance details, examples of installations and methods of assembly and all other technical data in such literature are based on experience and upon trials under test Conditions and are provided for general guidance only and no such information or data shall form part of the Contract.
SHORTAGES AND DEFECTS APPARENT ON INSPECTION
1. The Customer shall have no claim for shortages or defects in the Goods supplied apparent on visual inspection unless: -
  1. the Customer inspects the Goods within three working days of their arrival at its premises or other agreed destination, and
  2. a written complaint specifying the shortage or defect is made to the Company and to the carrier within seven working days of delivery in the event of shortage, defect, or non-delivery of any separate part of a consignment, or within fourteen working days of the notified date of dispatch in the event of non-delivery of a whole consignment or, in either event, within such shorter period as the carrier’s Conditions (if applicable) require, and
  3. the Company is given an opportunity to inspect the Goods and investigate any complaint before any use of or alteration to or interference with the Goods.
2. If a complaint is not made to the Company as provided in this Condition 9 then the Goods shall be deemed to be in all respects in accordance with the Contract and the Customer shall be bound to pay for the same accordingly.
3. Defects in quality or dimension in any instalment delivery shall not be a ground for cancellation of the remainder of the Contract.
DEFECTS NOT APPARENT ON INSPECTION
1. The Customer shall have no claim in respect of defects in the Goods which are not apparent on visual inspection at the time of delivery unless: -
  1. a written complaint is sent to the Company as soon as reasonably practicable after the defect is discovered and no use is made of the Goods thereafter and no alteration made thereto or interference made therewith before the Company is given an opportunity to inspect the Goods in accordance with this Condition, and
  2. the complaint is sent within 15 days of the date of delivery of the Goods or, in the case of an item not manufactured by the Company, within the guarantee period specified by the manufacturer of such item.
2. The Customer shall not be entitled to any claim in respect of any alterations undertaken by the Customer without the prior specific written consent of the Company nor in respect of any defect arising by reason of damage due to accident, neglect or misuse nor in respect of any Goods to which alterations have been made without such consent.
3. The Company shall not be liable for (and the Customer shall indemnify the Company against claims arising therefrom) loss or damage suffered by reason of use of the Goods after the Customer becomes aware of a defect or after circumstances which should reasonably have indicated to the Customer the existence of a defect.
4. The Company may within 15 days of receiving a written complaint (or 28 days where the Goods are situate outside the United Kingdom) inspect the Goods and the Customer, if so required by the Company, shall take all steps necessary to enable the Company to do so.
GUARANTEE CONDITION
1. Save as otherwise provided by the other Conditions of these Conditions Sections 13 to 15 of the Sale of Goods Act 1979 are to be implied into the Contract.
2. In the event of the Condition of the Goods being such as might or would (subject to these Conditions) entitle the Customer to claim damages, to repudiate the Contract and/or reject the Goods the Customer shall not then do so but shall first ask the Company to supply satisfactory substitute Goods and the Company shall thereupon be entitled at its option to take back the defective Goods and to supply satisfactory substitute Goods free of cost and within a reasonable time or to repay the price of the Goods in respect of which the complaint is made.
3. If the Company does so supply satisfactory substitute Goods or effect repayment pursuant to Condition 11.2 above the Customer shall be bound to accept such substituted Goods, repayment and the Company shall be under no liability in respect of any loss or damage whatsoever arising from the initial delivery of the defective Goods or from the delay before the substitute Goods are delivered or the repayment is effected.
LIABILITY
1. The Company shall not be liable: -
  1. in respect of claims arising by reason of death or personal injury unless the Company is shown to have failed to exercise reasonable care in the performance of the Contract and/or the Goods are deemed to be defective within the meaning of Part 1 of the Consumer Protection Act 1987, or
  2. in respect of claims arising through damage to property unless the Goods are deemed to be defective within the meaning of Part 1 of the Consumer Protection Act 1987.
2. Further, under no circumstances whatsoever shall the Company be liable for consequential loss (including removal or rectification work required in connection with the installation of substitute Goods) loss of profits, damage to property or wasted expenditure.
3. Without prejudice to Condition 12.2 where Goods are supplied for the purpose of a business the Company’s liability, whether in respect of one claim or the aggregate of various claims (other than claims for death or personal injury or pursuant to Part 1 of the Consumer Protection Act 1987), shall not exceed £1,000 and the Customer agrees to insure adequately to cover claims in excess of such amount.
CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY RIGHTS
1. All documents, confidential records, computer software and other information supplied by the Company are supplied on the express understanding that copyright is reserved to the Company and that the Customer will not, without the written consent of the Company, either give away, loan, exhibit or sell any such documents, records, software or other information or extracts there from or copies thereof or use them in any way except in connection with the Goods in respect of which they are issued.
2. All claims for alleged infringement in respect of patents, trademarks, registered design, design right or copyright received by the Customer must be notified immediately to the Company and the Company must thereafter be kept fully informed of the conduct of such claims.
INSOLVENCY
1. If the Customer shall become bankrupt, or under the provisions of Section 123 of the Insolvency Act 1986 is deemed to be unable to pay its debts, or compounds with creditors or in the event of a resolution being passed or proceedings commenced for the administration or liquidation of the Customer (other than for a voluntary solvent winding up for the purposes of reconstruction or amalgamation), or if a Receiver or Manager is appointed of all or any part of its assets or undertaking, the Company shall be entitled to cancel the Contract in whole or in part by notice in writing without prejudice to any other right or remedy accrued or accruing to the Company.
FORCE MAJEURE
1. In the event of the performance of any obligation accepted by the Company being prevented,
2. delayed, or in any way interfered with by:-
3. direction of government, war, industrial dispute, strike, breakdown of machinery or plant, accident, fire or by any other cause beyond the Company’s control, or
4. non-delivery by the Company’s suppliers or damage to or destruction of the whole or part of the Goods, the Company may at its option suspend performance or cancel its obligations under the Contract without liability for any damage or consequential loss resulting therefrom such suspension or cancellation being without prejudice to the Company’s right to recover all sums owing to it in respect of consignments delivered, and costs incurred prior to the date of suspension or cancellation.
CONSUMER PROTECTION ACT 1987 (“the Act”)
1. In circumstances where the Company supplies products to the Customer for incorporation with, or use ancillary to, any composite or other products to be produced, manufactured, processed or supplied by the Customer then: -
  1. the Customer shall forthwith on demand produce for inspection by the Company copies of all written instructions, information and warnings to be supplied by the Customer in relation to the said composite or other products, provided nevertheless that such inspection or right to inspect shall not of itself constitute acceptance or approval on the part of the Company of such instructions, information or warnings, and
  2. the Customer shall indemnify, reimburse and compensate the Company for all losses and damages (including costs, expenses and charges for legal actions in which the Company may be involved) that the Company may incur, or has to bear, in the event that any claim or claims are made against the Company pursuant to the Act or otherwise relating to the said composite or other products of the Customer in circumstances in which the part or product supplied by the Company was either (i) not the defective part of he said composite product, or (ii) was only rendered the defective part or became a defective product by reason of actions or omissions of the Customer (including without limitation the supply of defective free issue materials), or (iii) was only rendered the defective part or became a defective product by reason of instructions or warnings given by the Customer or other supplier of the said composite or other products or (iv) supplied in accordance with a specification and/or drawings furnished by, or on behalf of, the Customer.
  3. for the purposes of this Condition only the word “defective” shall be interpreted in accordance with the definition of ‘defect’ contained in Part 1 of the Act.
2. The Customer hereby acknowledges that it is under a duty to pass on to its customers (where appropriate) all instructions, information and warnings supplied to it by the Company with the Goods.
ASSIGNMENT
1. The Contract is between the Company and the Customer as principals and under no circumstances shall the Customer assign the benefit or burden of it without the prior written consent of the Company. The Company shall be entitled to assign or sub-contract the whole or part of its obligations under the Contract.
SEVERABILITY
1. In the event of any provision of these Conditions being or becoming void in whole or in part the other provisions of these Conditions shall remain fully valid and enforceable and void provisions shall, where appropriate, be replaced in accordance with the meaning and purpose of these Conditions.
LEGAL
1. The Contract shall be governed and interpreted exclusively according to the Law of England and shall be subject to the jurisdiction of the English Courts only.

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