1. Definitions Hereunder "the Seller" shall mean Anglo Italian Optical Limited, "the Buyer" shall mean the person, firm or company to whom the Seller agrees to sell or supply "the Goods" (and if more than one of the provisions thereof shall be binding on them joint and severally) and the "Goods" shall mean all goods which are the subject of any contract for sale or supply between the Seller and the Buyer to which the following terms shall apply.
2. General
All sales are made to the following terms and conditions and upon the express conditions that: -
(i) All quotations are given and all orders are accepted on these Terms and Conditions which over-ride and exclude any other terms stipulated, incorporated or referred to by the Buyer, whether in the order or in any negotiations or in any course of dealing established between the Seller and the Buyer.
(ii) No modifications to these Terms shall be effective unless made by express written agreement between the two parties. The signing of by the Seller of any Buyer's documentation shall not imply any modification of these terms.
3. Quality
(i) The Goods shall correspond so far as much as is possible with the Seller's specification of the Goods and shall be of merchantable quality but no warranty is given or shall be implied as to the suitability of the Goods for any specific purpose.
(ii) The Seller reserves the right to make such reasonable commercial verification as in design, modification and improvements to the technical specification of the Goods without imposing obligations on itself to incorporate any such modifications and improvements with products previously manufactured.
4. Patent or Copyright Infringement When the Goods are made or adapted by the Seller in accordance with the Buyer's specification the Buyer shall indemnify the Seller against all costs, claims and expenses incurred by the Seller in respect of the infringement or alleged infringement by the Goods of any patents, registered designs, trade marks or any other rights belonging to third parties.
5. Delivery
(i) Unless otherwise agreed in writing the place of delivery shall be the Buyer's nominal place of business.
(ii) All delivery dates are estimates only. The time of delivery shall not be the essence of the contract. The Buyer acknowledges that in the contractual performance of the Seller no regard has been paid to any given, accepted or desired delivery time or date and that no loss or damage can be attributed to the circumstances (should it be so) that delivery has not been completed by any such or any other time or date.
(iii) The Seller reserves the right to deliver the Goods by instalments. Where delivery is made by instalments, each delivery shall be deemed for such purpose to be the subject of a separate contract, any failure whatsoever by the Seller in respect of any one delivery shall not entitle the Buyer to repudiate the contract or any instalment remaining to be delivered thereunder.
(iv) A charge for carriage and packing will be levied on all orders. The Seller reserves the right where special deliveries are required to charge the costs thereof in addition.
(v) If the Buyer is unable to accept delivery of the Goods at the time when the Goods are ready for delivery, the Seller will, if storage facilities permit, store the Goods until actual delivery and the Buyer shall be liable to the Seller for the reasonable cost of such storage, including any additional handling and carriage costs. This provision shall be in addition to and not in substitution for any other payment or damages for which the Buyer may become liable due to his failure to take delivery at the appropriate date.
6. Return of Goods
(i) Save as provided by sub-clause (ii) hereof the Buyer shall at no time be entitled to return the Goods or to refuse to accept delivery thereof without the Seller's prior written consent.
(ii) Any claim for any shortage or for any defect as to quality, quantity or otherwise of the Goods shall be made by the Buyer in writing to the Seller within seven days of delivery thereof.
(iii) Any claim for non-delivery shall be made in writing by the Buyer to the Seller within seven days of receipt of invoice.
(iv) The Seller shall not be liable hereunder unless a claim in writing as provided by this clause shall have been received at the Seller's business address within the time herein provided.
7. Price
Unless otherwise expressly agreed in writing, the price of the Goods shall be that ruling on the date of delivery. The Seller reserves the right to alter prices at any time prior to delivery.
8. Payment
Unless otherwise agreed in writing, payment is due by the 25th day of the month following the month of invoice. Interest may be levied on all overdue amounts at the rate of 2% per month on the outstanding sum until payment is received after as well as before any judgements thereon.
9. Title of Goods
(i) Property and Title of the Goods shall remain vested in the Seller notwithstanding the Seller in full and without deduction, but that risk in the Goods shall be the Buyer's as from the time of delivery.
(ii) Until payment of the Goods shall have been made the Buyer shall: -
(a) Hold the Goods strictly to the Seller's order as its fiduciary and Bailee.
(b) Keep and store the Goods and each of them separate from those of the Buyer and any third party and property stored at no cost to the Seller protected, insured and clearly identified as the Seller's property.
(iii) Notwithstanding the fact that payment for the Goods shall not have been made the Buyer shall be entitled to re sell or use the Goods in the ordinary course of it's business at full market value for the account of the Seller. Until the 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 to any overdrawn bank account, and shall be at all material times identified as the Seller's money.
(iv) In the event of the Goods becoming incorporated in or forming part of any articles or products (hereafter called "the new articles") the new articles shall be subject to the same provisions of this clause as are the Goods (save for sub-clause (i) hereof) and the Seller's rights in respect thereof shall be the same as in respect of the Goods.
(v) If the new articles shall compromise material (other than the Goods) in respect of which title has not been passed to the Buyer the Seller's rights under sub-clause (iii) hereof) shall only be exercisable on payment by the Seller to such a third party in whom the title in the said material may be vested of such sum as may be due to such a third party in respect of the said material.
(vi) The Buyer's power of sale provided by sub-clause (iii) shall immediately cease on the happening of any of the following events: -
(a) If the Buyer is in default of any payment due to the Seller for longer than thirty days after such payment shall have become due.
(b) If the cheque, promissory note, bill of exchange or any other negotiable instrument tendered by the Buyer or anyone on the Buyer's behalf for payment of the Goods or anyone on the Buyer's behalf for payment of the Goods shall be dishonoured on first presentation.
(c) Upon the Seller giving the Buyer written notice any time withdrawing such right provided that such notice shall only be given if the Seller has any doubt as to the solvency of the Buyer.
(d) If a Receiver is appointed over the assets of the Buyer or if the Buyer calls a meeting of creditors or makes or seeks to make any composition or arrangement with creditors or, the Buyer being a Company a winding up order is made or a liquidator is appointed other than for the purposes of reconstruction or amalgamation not affecting the solvency of the Buyer or, being an individual or a firm any act of bankruptcy is committed by such an individual or partner of such firm ceases or threatens to cease to carry on it's business.
(vii) Upon the happening of any of the events provided by sub-clause (vi) above; -
(a) The Seller may enter upon any premises owned, occupied or controlled by the Buyer or any third party where the Goods are situated and repossess the Goods and the Buyer hereby grants to the Seller irrevocable licence so to do.
(b) The Seller may have the same rights of entry as provided for above in respect of any new articles.
(c) The Buyer or it's Receiver or Liquidator or anyone charged with the responsibility for the Company's affairs at the happening of any of the events provided for by clause (vi) above shall immediately account to the Seller for: -
(1) Any Goods unsold.
(2) The Goods incorporated into any new articles.
(3) As an alternative to (i) and (ii) above the full price as at the date of the happening of the event provided for by clause (vi) for any such Goods.
(4) Any and all monies without set-off or deduction of any type held by the Buyer pursuant to sub clause (iii) above.
10. Damage or Loss in Transit
If the Buyer establishes to the satisfaction of the Seller that the Goods have been lost or destroyed or damaged in transit and save insofar as the Buyer does not hold a policy of insurance to cover that risk or eventually the Seller will replace such Goods or credit the Buyer with the value thereof provided that the Buyer shall give written notice to the Seller: -
(a) In the case of damage or partial loss in transit within seven days of delivery.
(b) In the case of non delivery of the whole consignment within seven days from despatch of the Goods from the Seller; Except as provided herein the Seller shall not be liable to the Buyer for any loss or damage arising out of or in connection with the Goods damaged or lost in transit.
11. Law
Unless otherwise agreed these Terms and Conditions and any transaction hereunder shall be subject to and constructed in accordance with the laws of England and the parties hereby submit to the non-exclusive jurisdiction of the High Court.
