Copyright LAR Watersports. 2005-2008. All rights reserved.
|Conditions of Sale|
In these Conditions: ďBUYERĒ means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Good is accepted by the Seller. ďGOODSĒ means the goods (including any installment of the goods or any parts for them), which the Seller is to supply in accordance with these Conditions. ďSELLERĒ means LAR Watersports ďCONDITIONSĒ 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. ďCONTRACTĒ means the contract for the purchase and sale of the Goods. ďCREDIT ACCOUNTĒ means a credit account operated by the Seller for the benefit of the Buyer, in connection with the sale and purchase of Goods strictly in accordance with these Conditions. ďWRITINGĒ includes telex, cable, facsimile transmission and 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
The Seller shall sell and the Buyer shall purchase the Goods in accordance with the following:†
2.1.1 where Goods total (£100) or more in value (such value to be determined in accordance with the Sellerís price list), the Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, in writing on the Sellerís Order Form or†
2.1.2 where Goods total less than (£100) in value (which shall be determined in accordance with the Sellerís price list) the Seller shall sell and the Buyer shall purchase the Goods in accordance with any verbal quotation of the Seller and 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 is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.†
2.2 for the avoidance of doubt these Conditions override any previous Conditions issued by the Seller and or established through a previous course of dealings and the Buyer acknowledges that the Seller is and shall no longer be bound by those previous Conditions.†
2.3 No variation to these Conditions shall be binding unless agreed in writing between the authorized representative of the Buyer and a director of the Seller.†
2.4 The Sellerís employees or agents are not authorized to make any representations concerning the Goods unless confirmed by a director of the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations, which 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 Buyerís 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 in Writing by the Sellerís authorized representative on the Sellerís Order Form unless the value of the order is less than (£100) whereby the order submitted shall be accepted in accordance with clause 2.1.2. of these Terms.
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 thee Seller to perform the Contract in accordance with its terms.†
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Sellerís quotation (if accepted by the Buyer) or the Buyerís order (if accepted in writing by the Seller on the Sellerís Order Form).†
3.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform to any applicable statutory or EC requirements or, where the Goods are to be supplied to the Sellerís specification which do not materially affect their quality or performance.†
3.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all 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 cancellation.†
3.6 Any figures, statements, descriptions, illustrations, photographs, drawings or any other matters contained within the Sellerís catalogue or other advertising literature shall not be guaranteed to be accurate and shall not form part of any Contract between the Seller and Buyer.
4. Price of the Goods
4.1 The price of the Goods shall be the Sellerís quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Sellerís published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only 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 to reflect any increase in the cost to the Seller which is due to a factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods 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 Except as otherwise stated under the terms of any quotation or in any price list of the Seller and unless otherwise agreed in Writing between the Buyer and the Seller, all prices given by the Seller include the carriage costs for the delivery of Goods by the Sellerís normal van delivery service provided that the value of the Goods exceeds the minimum order value which shall be set by the Seller from time to time and that such delivery shall take place within a 2 miles radius of the Sellerís premises. Where the Seller agrees to deliver the Goods to the Buyerís nominated premises or site when the minimum value as more particularly detailed above is not met or where the address for delivery is at a distance greater than a two mile radius of the Sellerís premises, a charge shall be made for the delivery of the Goods and the Buyer shall be notified of the charge in writing in advance of the date of dispatch. Unless otherwise agreed in writing between the Seller and the Buyer the mode of transportation shall be at the sole discretion of the Seller.
4.4 The price is exclusive of any applicable value added tax, which 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 on or at any time before delivery of the Goods (unless the Goods are to be collected by the Buyer) or the Buyer wrongfully fails to take delivery of thee Goods, (in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection) or (as the case may be) the Seller has tendered delivery of the Goods.†
5.2 The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) either
5.2.2. At the date of the Sellerís invoice or
5.2.3 in accordance with these Conditions and any terms of the Credit Account and The Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not 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, including those dates arising out of the Credit Account 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 to the Buyer,
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) 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 judgment) on the amount unpaid, at the rate of 8 per cent per annum above Barclays Bank plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest)†
5.4 The Seller, in its entire discretion, may invite the Buyer to establish a Credit Account subject to the Seller obtaining and the Buyer consenting to the provision of two written trade credit references to the Sellerís satisfaction. Such Credit Account shall allow the Buyer to obtain credit for Goods up to a maximum value notified from time to time by the Seller to the Buyer. Goods obtained in accordance with the Credit Account must be paid for by the 15th of the month following the month during which delivery takes place, unless otherwise agreed in writing by the seller.
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Sellerís premises at any time after the Seller has notified the Buyer that thee Goods are ready for collection or
6.1.2 if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place or
6.1.3 notwithstanding clause 4.3 where the Contract provides that the Goods shall be delivered by an independent carrier delivery of the Goods by the Seller shall be deemed to be effected when the Goods are collected or delivered to the carrier.†
6.2 Any dates quoted, or times quoted and or representation that delivery of the Goods shall take place in a morning or afternoon period are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.†
6.3 Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with these Conditions or any claim by the Buyer in respect of any one or more installments shall not entitled the Buyer to treat the Contract as a whole as repudiated.†
6.4 If the Seller fails to deliver the Goods (or any installment for which there is a failure in delivery).†
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyerís reasonable control or by reason of the Sellerís fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.5.2 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.†
6.6 If the Goods delivered by the Seller are damaged or lost in transit, the Seller shall (repair or) replace those Goods at itís own expense provided that: Ė (6.6.1 the Seller is notified in Writing within 3 days of delivery of such damage or within 10 days of the date of the dispatch note of such loss and the Seller has acknowledged receipt of such notice and confirmed itís validity in Writing to the Buyer) 6.6.2 that damage or loss is only attributable to the negligence of the Seller and or the Sellerís employees. The entire liability of the Seller in connection with any claim arising from Goods damaged or lost in transit, shall be limited to the cost of the Goods supplied, but shall not exceed in any event the amount recoverable by the Seller from the carrier of the Goods if applicable, and the Seller shall not be liable for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise).
7. Risks 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 Goods to be delivered at the Sellerís 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 Goods to be delivered otherwise than at the Sellerís premises, at the time of delivery, or delivery to or collection by the carrier of the Goods, or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery 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 all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
†7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Sellerís fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and property stored, protected and insured and identified as the Sellerís property, but shall be entitled to resell or use the Goods in the ordinary course of its business. If the Buyer resells the goods before payment has been made of the Goods to the Seller, the Buyer agrees to set aside such amount due to the Seller from the proceeds of the sale in a separate suppliers account until payment is made.`
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. The Buyer agrees to notify such third parties of the Sellers interest in the goods, which shall exist until the property in the goods passes to the Buyer.†
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8. Warranties and Liabilities
8.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of (6) months from the date of delivery to the Buyer or his nominee or the completion of the Goods whichever shall be sooner.†
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 arising from fair wear and tear, willful damage negligence, abnormal working conditions, failure to follow the Sellerís instructions (whether oral or in writing), misuse of alteration or repair of the Goods without the Sellerís approval;
8.2.3 the Seller shall be under no liability under the above warrant (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 parts or materials or equipment 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 or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within (7 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 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 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 the part in question) free of charge or, at the Sellerís sold discretion, 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 Sellerís negligence, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation, whatsoever (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 Goods or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, 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 failure to perform, any of the Sellerís obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Sellerís reasonable control. Without prejudice to the generality for the foregoing, the following shall be regarded as causes beyond the Sellerís 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 government, parliamentary or local authority;
8.8.4 import or export regulations or embargoes;
8.8.5 strikes, lockouts 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. Returns Policy
The Seller will not accept returns of Goods by the Buyer if they have been supplied in accordance with the Contract†
9.2 In the event that the Seller (in its entire discretion) agrees to accept a return of Goods no longer required by the Buyer this will be on the strict basis that Goods are in the same condition as at delivery, have not been used and are complete with their full packaging. Any refund for returned Goods shall be subject to a deduction by the Seller of its reasonable administration and re-stocking costs.
10. Insolvency of Buyer
10.1 This clause applies if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becoming subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrance take possession, or a receiver is appointed, of any of the property or assets of the Buyer, or
10.1.3 the buyer ceases, or threatens to case, to carry on business; or
10.1.4 the Seller reasonable apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 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.
11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addresses 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 giving 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 Our liability in respect of any sale shall be limited to replacing or repairing goods purchased thereby fully discharging all legal liability in respect thereof.
11.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part of the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.†
11.5 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the exclusive jurisdiction of the English courts.
11.6 For the avoidance of doubt, these Conditions to not confer on any third party any benefits or any rights
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