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In these conditions, unless the context requires otherwise:
1.1 'Buyer' means the person who buys or agrees to buy the goods from the Seller;
1.2 'Conditions' means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
1.3 'Delivery Date' means the date specified by the Seller when the goods are to be delivered;
1.4 'Goods' means the articles which the Buyer agrees to buy from the Seller;
1.5 ‘Kanban Agreement’ means, at the Buyer’s request, the Seller’s supply of the Goods to the Buyer using a Kanban working methodology (for the Seller’s regular supply of Goods to the Buyer without the Buyer placing multiple separate orders), the details of which may be further agreed by the parties in writing;
1.6 ‘Manufacturer’ means the original manufacturer of the Goods, whose details are set out in the associated Warranty for the Goods (if any);
1.7 'Price' means the price for the Goods excluding carriage, packing, insurance and VAT;
1.8 'Seller' means Carafax Limited of Rotterdam Road, Sutton Fields Industrial Estate, Hull, Yorkshire, England HU7 0XD (Registered in England as Company number 1874815); and
1.9 ‘Warranty’ means the Manufacturer’s warranty relating to the Goods, which, if any, will be delivered or otherwise sent to the Buyer when first evaluating a potential purchase of the Goods or upon its actual purchase of the Goods from the Seller.
2.1 These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document), save that the terms of any Kanban Agreement that may be agreed between the parties in writing shall also apply.
2.2 If there is any conflict between these Conditions and the terms of any Kanban Agreement agreed between the parties in writing, the terms of that Kanban Agreement shall prevail.
2.3 All orders for Goods (or the entering into of a Kanban Agreement) shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
2.4 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer's acceptance of these Conditions.
2.5 The Seller may from time to time vary these Conditions. When it does so, it will upload the amended Conditions to its website (alongside the date of variation). Upon the Buyer placing an order (or continuing to place orders or entering into a Kanban Agreement) with the Seller for the purchase of Goods, it shall be deemed to have accepted the amended Conditions.
2.6 For the avoidance of doubt, any amendment to these Conditions shall not affect any orders that the Buyer has already placed with the Seller.
2.7 The Seller reserves the right to cancel an order for Goods or suspend Delivery where before the Delivery Date the Buyer undergoes a material change of control, or enters into administration, or a company or individual voluntary arrangement, or credit insurance cover is withdrawn
3.1 The Price shall be the Seller's quoted price. A delivery charge may also apply which, if applicable, shall be advised by the Seller. The Price and delivery charge are exclusive of VAT which shall be due at the rate ruling on the date of the Seller's invoice.
3.2 Payment of the Price, delivery charge (if applicable) and VAT shall be due within 30 days of the month of supply for credit accounts. Payment of the Price, delivery charge (if applicable) and VAT for cash sale and pro-forma accounts shall be made prior to supply.
3.3 Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 2% above National Westminster Bank plc's base rate from time to time in force and shall accrue at such a rate after as well as before any judgment.
3.4 The Buyer cannot offset against the Price of any Goods any sums on any account whatsoever.
4.1 The quantity and description of the Goods shall be as set out in the Seller's quotation or its catalogue. All images, descriptive matter and specifications are intended to give an approximate description of the Goods, and are to be taken as a guide only. The Seller reserves the right to amend specifications, measures, colour and availability without prior notice.
4.2 Save for any terms relating to fitness for purpose set out in a Warranty relating to the Goods, the Buyer is solely responsible for determining whether the Goods are fit for the Buyer’s intended purpose(s). As stated in clause 4.1, the Seller may give an approximate description of the Goods but this shall not be deemed to be advice in relation to fitness for purpose.
5.1 The Manufacturer’s Warranty (if any) sets out the only warranties, conditions and terms relating to fitness for purpose, quality and condition of the Goods. All other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are excluded to the fullest extent permitted by law.
5.2 The Seller advises that the Buyer review and safely retain this Warranty upon receipt. If the Warranty is misplaced by the Buyer, the Seller shall use reasonable endeavours to obtain a replacement Warranty from the Manufacturer, but does not guarantee to be able to do so.
5.3 In the event that the Buyer intends to make a Warranty claim relating to any of the Goods (Claim), it shall promptly notify the Seller. Should the Warranty require the Buyer to make a Claim against the Manufacturer directly, this shall be done by lodging the Claim via the Seller. In all circumstances the Buyer shall keep the Seller informed as to the progress and outcome of the Claim (to the extent legally possible).
6.1 Delivery of the Goods shall be made to the Buyer's address on the Delivery Date. The Goods may be delivered in advance of the Delivery Date upon the giving of reasonable notice to the Buyer. The Buyer shall make all arrangements to take delivery of the Goods whenever they are tendered for delivery.
6.2 The Seller reserves the right to suspend delivery where payment for Goods already delivered remains outstanding or where the Buyer is in breach of agreed credit terms, or credit insurance cover is withdrawn. The Buyer will remain responsible for payment in respect of all Goods ordered.
6.3 The Seller shall not be liable to the Buyer for late delivery or short delivery of the Goods.
6.4 Should the Buyer be aware (or have reason to believe) that the Goods have been damaged during delivery, the Buyer shall note this damage in writing on the delivery carrier’s delivery note (or other documentation) upon such delivery and shall then advise the Seller as soon as practicable thereafter.
7.1 The Buyer shall be deemed to have accepted the Goods 24 hours after delivery to the Buyer or if earlier when the Buyer first uses the Goods.
7.2 After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the contract.
7.3 Where the Buyer rejects any Goods then the Buyer shall have no further rights whatsoever in respect of the supply of such Goods to it or any failure by the Seller to supply Goods which conform to the contract of sale and, in particular and with reference to clause 10, no right to claim any direct, indirect or consequential loss or damage from the Seller.
7.4 Where the Buyer accepts or has been deemed to have accepted any Goods then the Seller shall have no liability whatever to the Buyer in respect of those Goods.
8.1 The Goods shall be at the Buyer's risk as from delivery.
8.2 In spite of delivery having been made property in the Goods shall not pass from the Seller until:
8.2.1 the Buyer shall have paid the Price, plus delivery charge (if applicable) plus VAT in full; and
8.2.2 no other sums whatever shall be due from the Buyer to the Seller.
8.3 Until property in the Goods passes to the Buyer in accordance with clause 8.2 the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Seller's property.
8.4 Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer's business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller's property by the Buyer on the Buyer's own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller's money.
8.5 The Seller shall be entitled to recover the Price (plus VAT) notwithstanding that property in any of the Goods has not passed from the Seller.
8.6 Until such time as property in the Goods passes from the Seller the Buyer shall upon request deliver up such of the Goods as have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer (or the Buyer’s administrator or receiver) where the Goods are situated, and repossess the Goods. On the making of such request the rights of the Buyer under clause 8.4 shall cease.
8.7 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
8.8 The Buyer shall insure and keep insured the Goods to the full Price against 'all risks' to the reasonable satisfaction of the Seller until the date that property in the Goods passes from the Seller, and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
Where the Buyer has:
(a) placed an order for Goods to be called off within an agreed period of time; or
(b) agreed with the Seller in writing to order a certain volume of Goods within an agreed period of time; or
(c) a Kanban Agreement in place with the Seller,
at the end of that period, or upon the expiry or termination of the Kanban Agreement, the Seller shall be entitled to invoice the Buyer and be paid for all remaining Goods the subject of that order or agreement (regardless of whether such Goods have been ordered or called off and delivered to the Buyer).
10.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
10.1.2 fraud or fraudulent misrepresentation; and
10.1.3 any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
10.2 Subject to clause 10.1:
10.2.1 the Seller shall not be liable to the Buyer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; or
(g) any indirect or consequential loss; and
10.2.2 the Seller shall not be liable to the Buyer for any Goods that are damaged during delivery to the Buyer, if the Buyer fails to document this in writing upon delivery in accordance with clause 6.4;
10.2.3 the Seller shall not be liable to the Buyer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Conditions in relation to any faulty or defective Goods (whether rejected, accepted or deemed to have been accepted by the Buyer). The Buyer’s sole remedy shall be to make a Claim against the Manufacturer’s Warranty, as referred to in clause 5; and
10.2.4 the Seller’s total liability to the Buyer in respect of all other loss or damage arising under or in connection with these Conditions, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed:
(a) if such loss or damage relates to, or is in connection with, a Good, 100% of the Price paid by the Buyer to the Seller for that Good; or
(b) if such loss or damage relates to any other matter, 100% of all payments made by the Buyer to the Seller in the 3 months preceding such loss or damage arising.
These Conditions are subject to the law of England and Wales and the exclusive jurisdiction of the courts of England and Wales.