1.1 The following definitions shall apply in these conditions:
‘BPH’ means BPH Attachments Limited and the supplier of the Goods;
‘Buyer’ means the person, firm or company who purchases the Goods from BPH;
‘Contract’ means the Buyer’s order and BPH’s acceptance of it in accordance with these conditions; and
‘Goods’ means the goods agreed in the Contract to be purchased by the Buyer from BPH.
1.2 Save as otherwise agreed in writing by BPH, these conditions shall govern the Contract to the entire exclusion of any other conditions contained in or referred to in the Buyer’s purchase order, confirmation of order, or specification or implied by law, trade custom, practice or course of dealing.
2. BASIS OF SALE
2.1 Each order for Goods by the Buyer shall be deemed to be an offer by the Buyer subject to these conditions. The Buyer shall ensure that its order is complete and accurate.
2.2 A binding contract shall not come into existence between BPH and the Buyer unless and until BPH issues a written order acknowledgment to the Buyer, or BPH delivers the Goods to the Buyer (whichever occurs earlier).
2.3 No order which has been acknowledged by BPH may be cancelled by the Buyer, except with the agreement in writing of BPH and provided that the Buyer indemnifies BPH in full against all loss, costs, damages, charges and expenses incurred by BPH as a result of cancellation.
3. QUANTITY AND DESCRIPTION OF THE GOODS
3.1 The quantity and description of the Goods shall be as set out in BPH’s acknowledgment of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by BPH, and any descriptions or illustrations contained in BPH’s catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.
3.3 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 BPH shall be subject to correction without any liability on the part of BPH.
3.4 BPH reserves the right (but does not assume the obligation) to make any changes in the specification of the Goods which are required to conform with any applicable legislation, or where the Goods are to be supplied to the Buyer’s specification, which do not materially affect their quality or performance. Where BPH is not the manufacturer of the Goods, BPH shall use reasonable endeavours to transfer to the Buyer the benefit of any warranty or guarantee given by the manufacturer to BPH.
4.1 Any delivery date specified in BPH’s acknowledgment of order is given in good faith but time is not of the essence as to delivery of the Goods and BPH accepts no liability for any loss or damage arising from delay in delivery or despatch of the Goods.
4.2 The Goods may be delivered by BPH in advance of the quoted delivery date on giving reasonable notice to the Buyer.
4.3 Delivery shall be made during normal business hours (excluding bank or public holidays).
4.4 The Buyer shall be responsible (at the Buyer’s cost) for preparing the delivery location for the delivery of the Goods and for the provision of all necessary access and facilities reasonably required to deliver and install the Goods. If BPH is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, BPH may levy additional charges to recover its loss arising from this event.
4.5 The Buyer shall be deemed to have accepted the Goods when the Buyer has had 7 days to inspect the Goods after delivery and has not exercised in writing its right of rejection in accordance with clause 9.
4.6 BPH shall be responsible for any damage, shortage or loss in transit, provided that the Buyer notifies it to BPH within 3 days of delivery of the Goods and that the Goods have been handled in accordance with BPH’s stipulations. Any remedy under this clause 4.6 shall be limited, at the option of BPH, to the replacement or repair of any Goods which is proven to BPH’s satisfaction to have been lost or damaged in transit.
5. RISK AND PROPERTY
5.1 If delivery is by BPH, or by a carrier appointed by BPH, the risk in the Goods shall pass to the Buyer on delivery of the Goods to the place of delivery specified in BPH’s acknowledgment of order. The carrier’s proof of delivery shall constitute proof of delivery by BPH. In all other cases, the risk in the Goods shall pass to the Buyer on collection of the Goods from BPH’s place of business.
5.2 The property in the Goods shall not pass to Buyer until the later of completion of delivery, collection by the Buyer or when BPH has received in full all sums due to it in respect of the Goods and any associated charges and of any other Goods delivered by BPH to the Buyer.
5.3 Until property in the Goods has passed to the Buyer under clause 5.2, the Buyer shall:
5.3.1 hold the Goods on a fiduciary basis as BPH’s bailee;
5.3.2 store the Goods (at no cost to BPH) in satisfactory conditions and separately from the Buyer’s other goods or that of a third party, so that it remains readily identifiable as BPH’s property;
5.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
5.3.4 keep the Goods insured on BPH’s behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of BPH, ensure that BPH’s interest in the Goods is noted on the policy, and hold the proceeds of such insurance on trust for BPH.
5.4 The Buyer’s right to possession of the Goods before ownership has passed to it shall terminate immediately upon termination of the Contract or if the Buyer encumbers or in any way charges the Goods, or if the Buyer fails to make any payment to BPH on the due date.
5.5 The Buyer grants BPH, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect it, or where the Buyer’s right to possession has terminated, to remove it. All costs incurred by BPH in repossessing the Goods shall be borne by the Buyer.
5.6 On termination of the Contract for any reason, BPH’s (but not the Buyer’s) rights in this clause 5 shall remain in effect.
6.1 The price of the Goods shall be the price stated in BPH’s acknowledgment of order.
6.2 Unless otherwise stated, the price quoted for the Goods is exclusive of delivery, packaging, packing, shipping, carriage, insurance, value added tax and other taxes, charges or duties.
6.3 BPH reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of such of the Goods as has not been delivered to reflect any increase in the cost to BPH which is due to any factor beyond the control of BPH (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, 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 BPH adequate information or instructions.
7.1 BPH may invoice the Buyer for the price of the Goods on or at any time after:
7.1.1 receipt of the Buyer’s purchase order number for the Contract;
7.1.2 issue of an order acknowledgment by BPH; or
7.1.3 delivery of the Goods,
whichever is the earlier.
7.2 Unless otherwise agreed, the Buyer shall pay for the Goods within 7 days of the invoice date.
7.3 Payment for Goods supplied on credit shall be made on or before the last day of the month following the month of the invoice date.
7.4 Time for payment of the price shall be of the essence of the Contract.
7.5 No right of set off shall exist in respect of any claims by the Buyer against BPH and the Buyer shall not withhold all or any part of any sum which has become due for payment.
8. BUYER’S DEFAULT
8.1 If the Buyer fails to make payment of a sum when the sum becomes due, BPH shall be entitled to charge the Buyer interest on the sum unpaid at the rate of 5% per annum over the base rate of Lloyds TSB Bank Plc.
8.2 If any unpaid sum or part thereof shall remain in arrears 7 days after written demand shall have been made thereof, BPH shall have the further right to terminate the Contract and/or any such other Contract without prejudice to any other right or remedy which BPH may have.
8.3 If the Buyer (being a company) shall pass a resolution or suffer an order of a court to be made for its winding-up, or if a receiver shall be appointed, or (being an individual or partnership) shall suspend payment or propose or enter into any composition with creditors or suffer a receiving order in bankruptcy, then BPH may without prejudice to any other right to recover the possession of any Goods supplied by BPH to the Buyer for which payment has not been received in full, or such similar Goods supplied by BPH to the Buyer to the value of the outstanding sum. Without prejudice to the generality of the foregoing, if the said Goods are sold by the Buyer, then BPH’s beneficial interest shall attach to any proceeds of such sale and BPH shall be entitled to call upon the Buyer to assign all claims that the Buyer may have in respect of such sale.
9. WARRANTY AND LIMITATION OF LIABILITY
9.1 BPH warrants that any Goods supplied to the Buyer as new will be free from defects in workmanship and/or materials, but the sole liability of BPH under such warranty shall be limited to replacing, repairing, or issuing credit at BPH’s option for any Goods which are returned, carriage paid, to BPH and which BPH accepts as having been defective in materials or workmanship.
9.2 BPH shall incur no liability under this warranty:
9.2.1 unless BPH is notified of the defect within 7 days of the Buyer discovering the defect and in any event within the warranty period specified on the order acknowledgment for the Goods, such warranty period commencing on delivery; or
9.2.2 for any Goods in which the alleged defect is found on examination to have been caused in whole or in part by misuse, neglect, overload, improper installation, alteration or repair, accident or fair wear and tear.
9.3 Any repaired or replacement Goods shall be under warranty for the unexpired portion of the warranty period.
9.4 BPH’s liability under this warranty shall in no event exceed the purchase price of the Goods.
9.5 Save in the event of personal injury or death caused by the negligence of BPH, BPH (including its employees, agents and sub-contractors) shall not in any circumstances be liable, whether in tort, contract, misrepresentation or otherwise, for any loss or damage, direct or consequential, of whatsoever nature or to whomsoever caused. The Buyer shall indemnify BPH against all claims made against BPH by a third party in respect thereof.
9.6 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
9.7 Any service or advice which may be offered by BPH to the Buyer or to the user of the Goods is rendered in all good faith but BPH shall not be liable for any loss or damage arising therefrom.
10. HEALTH AND SAFETY
Whilst all products supplied by BPH are designed so as to minimise any risk to the user, it is the responsibility of the user to ensure that safe working practices are observed at all times in the installation, use and handling of the Goods and of any equipment in which the Goods may be installed.
11. CONFIDENTIALITY AND BPH’S PROPERTY
11.1 The Buyer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Buyer by BPH, and any other confidential information concerning BPH’s business or its products which the Buyer may obtain.
11.2 All samples, demonstration models, materials, equipment and tools, drawings, specifications, and data supplied by BPH to the Buyer shall at all times be and remain the exclusive property of BPH, but shall be held by the Buyer in safe custody at its own risk and maintained and kept in good condition by the Buyer until returned to BPH, and shall not be disposed of or used other than in accordance with BPH’s written instructions or authorisation.
12. FORCE MAJEURE
BPH reserves the right to defer the date of delivery, or to cancel the Contract or reduce the amount of Goods ordered, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of BPH or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
13.1 A waiver of any right under the Contract is only effective if it is in writing and signed by or on behalf of the waiving party, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
13.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14.1 The Buyer shall not, without the prior written consent of BPH, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
14.2 BPH may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
15. THIRD PARTY RIGHTS
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
Any notice required to be given pursuant to this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the address of the party as set out in these conditions, or such other address as may be notified by one party to the other. A notice delivered by hand is deemed to have been received when delivered (or, if delivery is not in business hours, 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
17. LEGAL CONSTRUCTION
17.1 The Contract and any disputes arising out of or in connection with it or its subject matter or formation are governed by and construed in accordance with English Law.
17.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation.