In these conditions the following expressions shall have the following meanings.
111. “Additional Items” means the following where incurred:
(i) any taxes (including Value Added Tax) duties or other charges levied by
any government or other authority in respect of or by reason of the sale, delivery,
export or import of the Goods or any part thereof but excluding taxes assessed
on profits or gains.
(ii) transportation costs under Condition 7.1 where the customer has requested
express, same day, overnight delivery or any other similar or an additional £10
where the price payable (exclusive of Value Added Tax) is £30 or less;
(iii) the cost of samples under condition 3.5;
1.1.2 “Contract” means the quotation, these Conditions of Sale,
and any other documents incorporated in a contract between the seller and the
1.1.3 “the customer” means any person firm or company receiving
a quotation from and/or placing an order with the seller;
1.1.4 “Delivery Period” means 10 working days after the estimated
1.1.5 “Goods” means all and every item of goods or part thereof
supplied by the Seller and where relevant includes any work carried on items
supplied by the customer.
1.1.6 “ Seller” means Elvis Shakespeare Ltd and reference
to the acknowledgement, consent, authority or agreement in writing signed by
a director of the seller.
1.1.7 “Transgression” means any breach of contract or tort or other
act, default, omission or statement of the Seller, its employees, agents or
subcontractors in respect of which the Seller is liable to the Customer.
1.1.8 “Warranty Period” means 1 month from the date of delivery.
2.1 These conditions apply to all contracts for sale of Goods by the Seller
and supersede any previous Conditions of Sale published by the Seller. No additions
if modifications to or terms or conditions inconsistent with these. Conditions
shall be binding upon the Seller unless agreed by the Seller in a document
expressly referring to a modification, alteration, variation or addition of
or to the relevant Condition or Conditions.
2.2 The Customer shall be responsible for complying with any legislation or
regulations (of the United Kingdom or any other country) governing the export
and import of the Goods into the country of destination (and any other country
through which the Goods pass in transit) and for the payment of the duties
thereon. The Customer shall fully indemnify the Seller against any fines, penalties,
costs, claims, damages, losses and the expenses suffered but the Seller as
a result of the Customer failing to comply with the Clause 2.2.
3. Quotation and Orders
3.1 No contract for the supply of Goods will be created by the acceptance of
a quotation or an order until the Seller acknowledges the order or commences
work on the order.
3.2 The Seller reserves the right to increase the price quoted per unit for
Goods if the Customer orders less than the number of units upon which the quotation
was based or if the Seller’s supplier’s prices increase.
3.3 The Seller reserves the right to increase or decrease the number of items
in the Goods to be supplied by a variation not exceeding 5 per cent and to
make an appropriate increase of decrease (as the case may be) to the price.
3.4 Any samples submitted with the quotation or at the Customer’s request
must be returned within 90 days of receipt and if not so returned the cost
of samples shall be added to the Contract price or invoiced separately.
3.5 The Seller reserves the right to make any changes in the specification
of the Goods which are required to conform with any applicable safety or other
statutory requirements or, where the Goods are to be supplied to specifications,
which do not materially affect their quality or performance.
4. Price and Payment Terms
4.1 Unless otherwise stated any Additional Items shall be added to the price
or may be invoiced separately.
4.2 Payment in full (without any deduction by way of set off or counter claim)
so the Goods (and Additional Items if any) shall be due and payable in POUNDS
STERLING within 30 days to the date of the Seller’s invoice.
4.3 Without prejudice to any other rights of the Seller, if there is reason
to doubt that the amounts due from the Customer under the terms f the Contract
will be paid in full before delivering of performing any other work or services
whatsoever for the Customer.
4.4 Where the payment requested in accordance with this Condition is not received
within 30 days of the date of the invoice, the Seller reserves the right to
sell or dispose of the Goods produced for the Customer and to recover any additional
loss from the Customer.
5.1 Legal ownership of the Goods remain vested in the Seller until both the
Goods and any Additional items have been paid for in full, and until full payment
has been received by the Seller under any other contract with the Customer
for which payment is outstanding.
5.2 If the Customer obtains possession of the Goods prior to such payment,
the Customer shall hold the Goods in a separate and identifiable form as bailee
and fiduciary agent for the Seller.
5.3 Failure to pay the full amount when due shall give the Seller, or its employees
or agents, the right to repossess the Goods (and enter the Customer’s
premises for that purpose if necessary) with or without notice and without
liability and, at its option, to avail itself of any other legal remedy.
5.4 The Seller shall have the right to sell the Goods once they have been repossessed
under this Condition.
5.5 Notwithstanding this Condition 5, the Seller shall be entitled to maintain
an action for the price of the Goods and Additional items at any time after
the date when payment is due.
6. Performance and Force Majeure
6.1 The Seller shall take all reasonable steps to perform its obligations and
deliver within the time specified, but such times are estimates only. The Seller
shall not be liable for expenses losses or damages caused by late performance
or delay in delivery and delays shall not entitle the Customer to rescind the
6.2 The Seller reserves the right to make part deliveries and to submit invoices
for Goods supplied as part of an order.
7. Risk Carriage Packing and Storage
7.1 Where no specific instructions about the manner in which the Goods are
to be delivered to the Customer or the delivery address are given, the Seller
reserves the right in its absolute discretion to choose the means of carriage
to the Customer and to direct the Goods to the Customer’s last known
business address. Any such specific instructions must be given to the Seller
at the time of order and where such specific instructions are given the Seller
reserves the right to charge for delivery.
7.2 In the case of sales where the Seller delivers directly of contracts directly
with the carrier then the seller will repair or (at its option) issue a credit
note in respect of Goods lost or damaged in transit (other then by a default
of the Customer) provided that:
7.2.1 the Customer specifies on the Carrier’s Consignment Note details
of such loss or damage; and
7.2.2 in respect of complete non arrival of all of the Goods comprised in the
contract notification is made to the Seller within the period stipulated by
the Carrier’s terms of carriage for claims against the Carrier, and
7.2.3 in respect of damage to all or part of the Goods or loss of part of the
Goods comprised in the Contract notification is made to the Seller within 5
days of delivery of the Goods (which normally be stated on the invoice) and
separately to the Carrier within the period stipulated by the Carrier’s
terms of carriage for claims against the Carrier. On request, the Seller will
inform the Customer of the name and address of the Carrier and any time limit
for claims stipulated by them.
Once the Goods are ready for delivery the Seller shall be entitled to invoice
and be paid for the Goods as if they had been delivered if for any reason the
Customer does not arrange for accept delivery. The Seller shall arrange storage
for the Goods and the cost of storage shall be added to the Contract price.
Where the Goods are to be delivered in instalments each delivery shall constitute
a separate contract and failure by the Seller to deliver any one or more of
the instalments in accordance with these conditions or any claim by the customer
to treat the Contract as a whole repudiated.
8. Terms and Representatives
These clauses define the customers rights in respect of any loss or damage
caused by the goods or for any statements made by the Seller their employees
or agents. Customers are advised to read these provisions carefully.
The Seller agrees to repair or (at its discretion) replace or (at its discretion)
issue a credit note in respect of Goods which are found to be defective (fair
wear and tear excepted) and which are returned to the Seller within the Warranty
Period provided that each of the following are satisfied:
8.2.1 notification of any defect is given to the Seller immediately upon it
becoming apparent to the customer;
8.2.2 any Goods or parts of Goods replaced shall become the property of the
8.3 The Seller accepts liability;
8.3.1 for any breach by the Seller of any statutory undertaking as to title,
quiet possession and freedom from encumbrance.
8.4 Subject to Conditions 8.2 and 8.3 from the time of delivery of the Goods
the Customer shall be responsible for any defect in the Goods or loss, damage,
nuisance or interference whatsoever consequential economic or otherwise or
wastage of material resulting from or caused by or to the Goods. In particular
the Seller shall not be liable for any loss of profits or other economic losses.
The Seller accordingly excludes all liability for the same.
8.5 No condition, warranty or other term, express or implied (by statute or
otherwise) is given by the Seller that the Goods (whether or not the Seller
or its employees or agents have recommended their use) are of any particular
quality or will enable the Customer to attain any particular performance or
result, or will be suitable for any particular purpose or use under specific
conditions or will provide any particular purpose or conditions may have been
known (or ought to have been known) to the Seller, its employees or agents.
8.6.1 To the extent that the Seller is held legally liable to the Customer
for any single Transgression, the Seller’s liability for the same shall
not exceed the price of the order of which the defective Goods were a part
of Ten Thousand Pounds (whichever is lower) provided that a number of Transgressions,
whether successive of concurrent, which together result in or contribute to
substantially the same loss or damage shall be treated as a single Transgression:
8.6.2 The restriction of liability in Condition 8.6.1 shall not apply to any
liability accepted by the Seller in Condition 8.3.
8.7 If any exclusion or limitation of liability or any other provision contained
in the Contract is held invalid under any applicable statute or rule of law,
it shall to that extent be deemed omitted, but if the Seller thereby becomes
liable for any liability which would otherwise have been excluded or limited,
such liability shall be subject to the other exclusions limitations or provisions
set out in Condition 8.
8.8 The Customer shall fully indemnify the Seller against all losses, damages,
costs, actions, claims, demands, fees and other expenses (legal or otherwise)
the Seller may incur in consequence of the Goods or Connected Goods being (whether
in whole or in part and directly or indirectly) involved in a claim under the
Consumer Protection Act 1987 except to the extent that the alleged defect in
the product the subject of such claim was directly caused by an act or omission
of the Seller.
9.1 The seller shall at its option, be entitled by notice to terminate all
or any of its contracts with the Customer forthwith and recover all expenses,
losses and damage resulting to the Seller including (but without limitation
to) loss of profit or other consequential loss if:
a) the Customer has a bankruptcy petition presented against him or a bankruptcy
order is made:
b) the Customer makes or seeks to make any composition or arrangement with
c) the Customer makes a proposal to his creditors for a voluntary arrangement
or applies for an interim order (without the meaning of Section 286 Insolvency
d) an encumbrancer takes possession of any Customer’s assets, or any
of the Customer’s properties taken in execution of process of law:
e) a petition is presented or an order is made or a resolution is passed for
the winding-up of the Customer:
f) a petition is presented or an order is made for an administration order
to be made in relation to the Customer:
g) the Customer’s directors make a proposal for a voluntary arrangement
with the Customer’s creditor’s:
h) the Customer is unable to pay its debts (within the meaning of Section 123
Insolvency Act 1986)
i) a receiver or administrative receiver is appointed over any of the Customer’s
9.1.2 the Customer fails to make any payment owed to the Seller on the due
9.1.3 the Customer fails to make payment owed to the Seller on the due date:
9.1.4 the Customer fails to take delivery of or to collect the Goods within
14 days of being notified by the Seller that they are to be delivered or are
ready to be collected: or
9.1.5 the Customer is breach or the terms and conditions of any contract with
the Seller (including breach of these Conditions) and shall fail to remedy
the same within 21 days of notice specifying the breach and requiring remedy
(if the breach shall be redeemable).
10.1 The contract shall be governed in all respects of Scottish Law.