Robb Bros. Wine Merchants Terms and Conditions of Sale
a. These Terms and Conditions shall apply to all sales and variations or purported variations (including, in particular, any terms and conditions in the Buyer's contract or order form), whether before or after the making of the contract, and shall have effect unless expressly agreed to in writing by the Seller.
b. There shall be no contract between the Seller and the Buyer until the Buyer's order is accepted.
c. The contractual rights which the Buyer enjoys by virtue of Sections 12,13,14 and 15 of the Sale of Goods Act 1979 (as amended by the Sale and Supply of Goods Act 1994) are in no way prejudiced by anything contained in these terms and conditions save (if the Buyer is not dealing as consumer or in the case of an international sale of goods) to the extent permitted by law.
d. Words and expressions defined in the Sale of Goods Act 1979 (as amended by the Sale and Supply of Goods Act 1994) shall, where used in these Terms and Conditions, save where the context otherwise requires, bear the same meanings as therein.
2 TRANSER OF OWNERSHIP
a. Notwithstanding delivery and passing of risk, the property and title in the goods shall remain in the Seller and shall not pass to the Buyer until the Buyer shall have discharged all sums due by the Buyer to the Seller. Until such payment in full is received, Clauses 2(b) to (g) inclusive shall apply.
b. The Buyer shall hold the goods as bailee and fiduciary agent of the Seller.
c. The Buyer shall keep the goods properly stored and protected and in such manner that the goods are clearly identifiable as the property of the Seller. The Buyer agrees that any goods of a brand manufactured or distributed by the Seller shall be presumed to have been supplied by the Seller unless the Buyer proves otherwise.
d. The Buyer may sell the goods in ordinary course of the Buyer's business until the happening of any of the events set out in Clause 2(e).
e. The events referred to in (d) above are:
i. any failure of the Buyer to pay for the goods by the times stipulated in Clause 6 hereof;
ii. any failure of the Buyer to pay for any goods by the time stipulated in the contract for sale of such goods;
iii. any notice to the Buyer or the Seller that a receiver and/or manager, administrator or administrative receiver of or over the business or property of the Buyer is to be or has been appointed;
iv. any notice to the Buyer or the Seller that a petition to wind up the Buyer is to be or has been presented or any notice of a resolution to wind up the Buyer (save for the purpose of a reconstruction or amalgamation on terms previously approved in writing by the Seller);
v. any notice to the Buyer or the Seller that a petition for the adjudication in bankruptcy of the Buyer is to be or has been presented;
vi. any decision by the Buyer that the Buyer intends to make an arrangement with its creditors;
vii. the insolvency of the Buyer within the meaning of Article 103 of the Insolvency (Northern Ireland) Order 1989 or any amendment thereof;
viii. the Seller by notice in writing revoking the authority of the Buyer to sell the goods.
f. Upon the happening of any of the events set out in Clause 2(e) above, all the goods shall be immediately delivered up to the Seller and the Buyer grants the Seller, its servants and agents an irrevocable licence to enter during normal business hours on the lands or buildings of the Buyer to recover the goods.
g. Upon the happening of any of the events set out in Clause 2(e) above, the authority of the Buyer to sell the goods shall be immediately withdrawn and without any further notice or act required of the Seller be deemed withdrawn. If nothwithstanding such withdrawal, the Buyer, its servant or agent shall thereafter sell any of the goods, the following provisions shall apply:
i. the Buyer, its servant or agent shall hold on trust for the Seller the proceeds of sale of the goods:
ii. if requested by the Seller, the Buyer, its servant or agent shall open and maintain a separate Bank Account for the proceeds of the goods sold after the date of an event referred to in Clause 2(e) such account to be designated to the order of the Seller and maintain separate records identifying the proceeds of sale received in respect of the goods sold after such date; and
iii. the Buyer hereby appoints the Seller its attorney for the purpose of collecting from any purchaser the proceeds of sale in respect of any of the goods resold by the Buyer, its servants or agents after the date of an event referred to in Clause 2(e) including the institution of proceedings in the name of the Buyer, its servant or agent and shall give the Seller such assistance as the Seller may require to pursue such a claim.
a. Any times quoted for delivery are estimates only (and shall not be made of the essence by notice) and the Seller shall not be liable for failure to deliver within the time quoted.
b. If the goods are not received by the Buyer within six days from the dates of the relevant invoice, the carrier and the Seller must at once be informed.
c. The Seller shall be entitled to make partial deliveries or deliveries by instalments and the Terms and Conditions herein contained shall apply to each partial delivery.
d. Deviations in quantity of the goods (representing no more than 10 per cent by value) from that stated in the contract shall not give the Buyer any right to reject the goods or to claim damages and the Buyer shall be obliged to accept and pay at the contract rate for the quantity of the goods delivered.
4 RISK OF LOSS OR DAMAGE
a. Notwithstanding that the property in the goods may not have passed to the Buyer, the Buyer shall carry all risk of loss of and damage to the goods from the time when the goods are delivered to a carrier for transmission to the Buyer or the prior delivery of the goods to the stipulated place of delivery, either of which events shall constitute delivery to the Buyer and Section 32(3) of the Sale of Goods Act 1979 shall not apply.
b. From when the risk of loss and damage to the goods commences to be carried by the Buyer until the Seller is paid in full for the goods the Buyer shall:
i. indemnify and keep indemnified the Seller against all loss of and damage to the goods and against any reduction in the re-sale value thereof below the price to be paid therefore by the Buyer;
ii. insure and keep insured the goods in an amount at least equal to the price to be paid therefore by the Buyer; and
iii. hold upon trust for the Seller absolutely all proceeds of such insurance.
a. Unless otherwise agreed in writing, all prices shall be specified in the Seller's price list as published from time to time and shall be exclusive of VAT and any other applicable taxes.
b. The Seller reserves the right at any time prior to delivery of the goods to adjust the price to take account of any increases in the costs of materials, labour and services or of any currency and services or of any currency fluctuations which increase the costs to it of goods imported into Northern Ireland.
c. Unless otherwise stated, the price includes cost of delivery to the Buyer's address agreed between the Seller and the Buyer and insurance in transit.
6. TERMS OF PAYMENT
a. Unless otherwise agreed in writing, payment for the goods shall be made not later than the 15th day of the month following the month in which the goods are invoiced to the customer.
b. The Buyer shall pay to the Sellers interest on overdue payments calculated on the day-to-day balance at a rate of interest equal to that from time to time payable by the Seller on overdraft borrowings. Such interest shall be payable on demand and may be charged and added to the balance of overdue payments and thereby compounded from time to time as the Seller may determine. A statement from the Seller as to the rate of interest applicable under this clause shall in the absence of manifest error, be conclusive.
c. Nothing in this clause shall be taken as limiting the Seller's rights under Clause 8.
7. REMEDIES FOR ANY DEFECTS ETC.
a. If by reason of any defect in the goods there shall be a breach of any implied condition or warranty applicable thereto, the Seller shall as its option either repair or replace the goods or issue credit to the Buyer, provided that:-
i. the Seller is notified in writing within 7 days of the discovery of any such defects by the Buyer and in any event not later than 14 days after purchase:
ii. the relevant guides are returned to the Seller at the cost of the Buyer;
iii. examination of such goods by the Seller shall disclose to its satisfaction that a breach of an implied condition or warranty shall have occurred as aforesaid, and in particular that the goods shall not have been affected by misuse, neglect, accident, improper storage, installation or handling or by repair or alteration not effected by the Seller, and
iv. the Buyer shall pay to the Seller the cost (as stated by the Seller) of any examination of the goods as a result of which the Seller does not admit liability.
b. This guarantee shall not apply to, and all implied conditions and warranties other than those arising under Section 12 of the Sale of Goods Act 1979 are hereby excluded in relation to any parts, components and accessories supplied by, but not manufactured by, the Seller, but the Seller will as far as possible pass to the Buyer the benefit of any guarantee, condition or warranty given to the Seller by the manufacturer.
c. Nothing in these Terms and Conditions excludes or limits the liability of the Seller for death or personal injury caused by the Seller's negligence or fraudulent misrepresentation. In all other respects, the Seller's liability for any claim, whether in contract, tort (including negligence) or otherwise, for any loss or damage arising out of or in connection with or resulting from the manufacture, sale, delivery, re-sale, replacement or use of any of the goods shall in no case exceed the price paid by the Buyer to the Seller for the goods which give rise to the claim plus expenses of customs, taxes, freight and insurance. In no event shall the Seller be liable for any loss of profits, or special or consequential damages suffered by the Buyer, including interest charges. Nothing contained in this clause shall by implication create any liability or obligation on the part of the Seller, or effect or diminish any disclaimer of liability elsewhere contained herein.
d. Except as expressly stated above all other warranties, conditions and representations, express or implied, statutory or otherwise, in relation to the quality of fitness for any particular purpose of the goods are hereby excluded and the Seller shall not be liable in contract, tort or otherwise for any loss, damage, expense or injury of any kind whatsoever, consequential or otherwise, arising out of or in connection with the goods sold or any defect in them or from any other cause, whether or not any such matter amounts to a fundamental breach of a fundamental term of the contract.
e. The Seller's liability under this provision shall be limited to a period of one year from the date of receipt of the goods by the Buyer.
f. The Buyer shall not reject any goods or cancel or purport to cancel the contract or any part of it because of an alleged default unless and until the Seller shall have failed to correct such alleged default within 30 days of written notice specifying the default.
8 DEFAULT BY BUYER
a. On the occurrence of any of the events of default set out in Clause 2(e) the Seller shall have the right (without prejudice to any other remedies) to cancel any uncompleted order and withhold or suspend delivery of further goods, and to demand payment forthwith of all sums due by the Buyer to the Seller.
b. In the event the Seller exercises any rights, it may have to stop goods in transit because of the Buyer's financial condition, the Seller may at its option resell such goods at public or private sale without notice to the buyer and without affecting the Seller's rights to hold the Buyer liable for any loss or damage caused by breach of contract by the Buyer.
The Buyer shall indemnify the Seller against all damages, penalties, costs and expenses to which the Seller may become liable as a result of work done or the supply of goods in accordance with the Buyer's specifications which involves the infringement of any letters patent, registered design, copyright, trademark or trade name or other rights of confidentiality of information or industrial, commercial or intellectual property.
10 FORCE MAJEURE
In the event of an act of God, governmental direction or other authoritative direction or intervention, strikes, lock-outs or other industrial, civil or international unrest (whether the same affects the Seller, its suppliers or agents) or any other cause of whatsoever nature beyond the control of the Seller (including without limitation the acts of the Buyer or a third party), the Seller shall not be liable for any delay in delivery, non-delivery, destruction or deterioration of all or any part of the goods or for any other default in the performance of any uncompleted order or the contract arising therefrom and the Seller shall have the option either to cancel any such uncompleted order or the contract either wholly or partially or to extend the time for delivery for such period as said circumstances shall continue. In the event of cancellation or postponement by the Seller, the Buyer shall have no claim whatsoever against the Seller.
The Buyer shall not assign or transfer or purport to assign or transfer to any other person the contract or the benefit or burden thereof of any condition, warranty or guarantee or other term or condition (express or implied) forming part thereof or relating to the goods.
The headings of these Terms and Conditions are for convenience only and shall have no effect on the interpretation thereof.
If at any time any one or more of the provisions hereof is or becomes invalid, illegal or unenforceable in any respect, the remaining provision shall be deemed to be severable and the validity, legality and enforceability of such remaining provision hereof shall not in any way be affected or impaired thereby.
14. GOVERNING LAW
This contract shall be governed and construed in all respects in accordance with the laws of Northern Ireland.
15. RIGHTS OF THIRD PARTIES
The parties to these Terms and Conditions do not intend that any term of these Terms and Conditions or any order hereunder shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to them.