The following terms represent the entire terms on which Barbizon Europe Ltd. (“the Seller”) is willing to sell goods(“the Goods”) and by ordering Goods from the Seller the Buyer agrees that the following terms represent the entire agreement between the Buyer and the Seller and that these terms shall apply to the exclusion of any previous terms and conditions supplied by the Seller, the Buyer’s own terms and conditions, any pre-contractual statement or any other terms of whatsoever nature not contained below. No officer, employee or agent of the Seller (other than a Director) has authority to contract for the sale of Goods on any other terms, or to amend, vary or waive these terms, and a Director has authority to do so only in writing.
Any time of delivery stated by the Seller either on the face of this form or otherwise shall be treated as an estimate only. The Seller will use its reasonable endeavours to deliver by that time but gives no other undertaking as to the time of delivery. The Goods shall be delivered to the Buyer at the place of delivery recorded on the face of this form or (if no such address is recorded there) at the premises of the Seller.
The price shall be payable on or before delivery of the Goods unless otherwise agreed. The time of payment shall be of the essence. In the event that payment is not made when due, the Seller may:-
3.1 cancel any contract to supply further goods or services
3.2 suspend deliveries of further goods or the supply of further services to the Buyer;
3.3 suspend any Credit Terms, in which case all sums payable to the Seller from the Buyer for goods and or services supplied shall become due and payable immediately; and
3.4 charge interest at 8% above the base rate of Barclays Bank Plc plus any costs of collection
4.1 Property in the Goods shall pass to the Buyer on the occurrence of the last of the following events namely:
(a) payment in full of the price of the Goods sold hereby, and
(b)payment in full of every other sum owing by the Buyer to the Seller.
4.2 Until property shall have passed as aforesaid the Buyer shall hold the Goods as bailee for the Seller and shall keep them separately stored and identified as the property of the Seller.
4.3 In the event that the Buyer shall sell the Goods before property has passed as aforesaid, he shall do so as the agent of the Seller, the proceeds of any such sale shall be kept in a separate account identified as containing monies from the sale of the Sellers property and the Buyer shall account to the Seller for the whole of such proceeds.
4.4 Until property shall have passed as aforesaid the Seller shall be at liberty at any time: –
(a) by notice in writing to require the Buyer forthwith to return the Goods whereupon the Buyer shall cease to be in possession of them with the consent of the Seller;
(b) to retake possession of the Goods and for that purpose to enter on any premises where the Goods are or are reasonably believed by the Seller to be situated.
The Seller gives no warranty that the Goods are fit for the Buyers purpose or purposes. The Buyer warrants that he has satisfied himself that the Goods will be fit for every purpose which he requires them and that he does not rely on any skill or judgment of the Seller in that regard.
The Buyer further warrants that: –
(a) he is aware that the Goods are supplied for the purpose for which they were manufactured, and
(b) he has all the licenses that are required for their use, and
(c) the Goods will be tested prior to use, and
(d) the Goods will only be used by suitably qualified individuals, and
(e) the Goods will be regularly serviced, tested, certified and inspected, and
(f) the Goods will not in any way be adapted or altered, and
(g) he will not give or imply any warranty to any person whom he may sell or let the Goods other than the foregoing and that he will notify that person of the requirements of the Seller as to license, test, use, service, inspection, certification, and adaptation as above and of any statutory authority of any state or country in which the Buyer or that person is resident or carrying on business.
Nothing in this clause affects the Buyer’s rights under the Sale of Goods Act 1979.
The Buyer shall inspect and test the Goods immediately upon delivery and shall within 3 days after delivery give notice in writing to the Seller of any respect in which he alleges that the Goods are not in accordance with the contract. If the Buyer shall not have given such notice within that time the Goods shall be deemed to be accepted in every respect in accordance with the contract.
This clause shall apply to all claims by the Buyer against the Seller irrespective of whether such claims arise in contractor in tort and whether or not the Seller was negligent.
(a) The Seller shall indemnify the Buyer against any claims arising from physical injury to or death of the Buyer’s personnel and/or third parties, which is directly and wholly caused by the negligence of the Seller or its employees in the performance of its or their duties under this Agreement.
(b) In the event that notice has been given pursuant to clause 7 above that the Goods (or part thereof) are not in accordance with the contract and the price of the Goods has been paid on or before the due date, the Seller shall replace or repair the Goods (or part thereof) at its own expense provided that the Buyer has within 30 days after the said notice caused the Goods (or part thereof) which are alleged to be defective to be returned, at the Buyers expense, to the Seller’s premises or such other place as the Seller shall direct.
(c) No other remedy than that provided for in sub-paragraph (b) above shall be available to the Buyer.
(d) Without prejudice to the generality of the foregoing the Seller: –
(i) shall not be liable for damages in the nature of or arising from loss of profits, loss of user, loss of revenue, loss of hire or rental in respect of the Goods or any other goods, nor for damages arising from compensation payable by the Buyer to any other person, firm, corporation or organization whatsoever, and
(ii) except in relation to claims under sub-paragraph (a) above shall not be liable for any losses, damages, costs, claims, expenses or liabilities exceeding the purchase price of the Goods.
The Seller shall be relieved of its obligations under this contract insofar as it is hindered in or prevented from performing them by any circumstances whatsoever.
The Buyer undertakes and agrees to indemnify and hold harmless the Seller against any and all actions, claims, proceedings, costs, losses, expenses, liabilities, including legal fees, whatsoever and howsoever caused or arising out of, connected with, or resulting from the Goods themselves or use of the Goods including without limitation the manufacture, selection, delivery, possession, use, operation, return or any and all damages or injuries caused thereby to anyone whatsoever.
(a) The failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this contract by the other party shall not be deemed a waiver of that term, covenant, or condition nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other times.
(b) If any provision in this contract is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in force without being impaired or invalidated in any way.
All disputes or differences which shall at any time arise between the parties whether during the term of this contractor afterwards touching or concerning this contract or its construction or effect or the rights duties or liabilities of the parties under or by virtue of it or otherwise or any other matter in any way connected with or arising out of the subject matter of this contract shall be referred to a single arbitrator to be agreed upon by the parties or in default of agreement to be nominated by the President for the time being of the Chartered Institute of Arbitrators in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment of it for the time being in force.
This contract is given by and interpreted in accordance with English Law and the Buyer submits to the jurisdiction of the High Court of Justice in England, but the Seller may enforce the contract in any Court of competent jurisdiction.
No alteration or waiver of the terms contained herein shall be effective unless such authorisation or waiver is in writing from a Director of Barbizon Europe Ltd. (Clause 1)