(i) shall be held in trust for us in a manner which enables such proceeds to
be identified as such, and :
(ii) shall not be mixed with other monies nor paid into an overdrawn bank
account.
We, as principal, shall remunerate the Purchaser as commission agent a
commission depending upon the surplus which the Purchaser can obtain
over and above the sum, stipulated in this contract of supply which will
satisfy us.
(g) in the event that the Purchaser shall sell any of the goods pursuant to
clause (6) hereof, the Purchaser shall forthwith inform us in writing of such
sale and of the identity and address of the third party to whom the goods
have been sold.
(h) if, before property in the goods passes to the Purchaser under paragraph
(2) above the goods are or become affixed to any land or building owned
by the Purchaser it is hereby agreed and declared that such affixation shall
not have the effect of passing property in the goods to the Purchaser.
Further more if, before property in the goods shall pass to the Purchaser
under paragraph (2) hereof, the goods are or become affixed to any land
or building (whether or not owned by the Purchaser), the Purchaser shall
:-
(i) ensure that the goods are capable of being removed without material
injury to such land or building.
(ii) take all necessary steps to prevent title to the goods from passing to
the landlord of such land or building.
(iii) forthwith inform us in writing of such affixation and of the address of
the land or building concerned.
The Purchaser warrants to repair and make good any damage caused by the
affixation of the goods to or their removal from any land or building and
to indemnify us against all loss damage or liability we may incur or sustain
as a result of affixation or removal.
(i) in the event that, before property in the goods has passed to the
Purchaser under paragraph (2) hereof, the goods or any of them are lost,
stolen, damaged or
destroyed :-
(i) the Purchaser shall forthwith inform us in writing of the fact and
circumstances of such loss, theft, damage or destruction.
(ii) the Purchaser shall assign to us the benefit of any insurance claim in
respect of the goods so lost, stolen, damaged or destroyed.
12. NON-PAYMENT
If the Purchaser shall fail to make full payment for the goods supplied
hereunder within the time stipulated in clause 4 hereof or be in default of
payment for any other reason then, without prejudice to any of our other
rights hereunder, we shall be entitled to stop all deliveries of goods and
materials to the Purchaser, including deliveries or further deliveries of goods
under this contract. In addition we shall be entitled to terminate all
outstanding orders.
13. RISK
All goods sold by us shall be at the sole risk of the Purchaser from the date
of despatch by us of the invoice for their price.
14. VALUE ADDED TAX
All prices quoted are exclusive of Value Added Tax which will be charged
at the rate ruling at the date of despatch of invoice.
15. TRADE SALES ONLY
We are only prepared to deal with those who are not consumers within the
terms of the Unfair Contract Terms Act 1977, the Sale of Goods Act 1979
and the Supply of Goods and Services Act 1982. Accordingly any person
who purchases from us shall be deemed to have represented that he is not
a consumer by so purchasing.
16. JURISDICTION
The Agreement is subject soley to English Law and any dispute arising
hereunder shall be settled in accordance therewith.
(d) except as provided in paragraph (a) above but otherwise notwithstanding
any provision herein contained in no event shall we be liable for the
following loss
or damage howsoever caused and even if foreseeable by us or in our
contemplation :-
(i) economic loss which shall include loss of profits, business revenue,
goodwill or anticipated savings.
(ii) damages in respect of special indirect or consequential loss or damage
(other than death, personal injury and damage to tangible property).
(iii) any claim made against the purchaser by any other party
(save as expressly provided in paragraph (b) above).
(e) except in respect of our liability referred to in paragraph (a) above no
claim may be made or action brought (whether in contract or in tort
including negligence) by the purchaser in respect of any goods supplied by
us more than one year after the date of the invoice for the relevant goods.
(f) nothing in these Conditions shall confer on the purchaser any rights
or remedies to which the purchaser would not otherwise be legally entitled.
(6) Notwithstanding any other provision contained herein the Purchaser's
hereby agree to fully indemnify us against any damages losses costs claims
or expenses incurred by us in respect of any claim brought against us by any
third party for :-
(a) any loss injury or damage wholly or partly caused by any goods supplied
by us or their use.
(b) any loss injury or damage wholly or partly caused by the defective
installation or sub-standard workmanship or materials used in the installation
of any goods supplied by us.
(c) any loss injury or damage in any way connected with the performance
of this contract.
PROVIDED that this paragraph (6) will not require the Purchaser to
indemnify us against any liability for our own acts of negligence or those
of our employees agents or sub-contractors.
FURTHER in the case of goods supplied by us which are re-sold to and
installed by a third party by the Purchaser it will be the sole responsibility
of the Purchaser to test the goods immediately after their installation to
ensure that inter alia they are correctly installed and are in proper working
order, and are not likely to cause any loss injury or damage to any person
or property.
10. VARIATION OF WARRANTY AND EXCLUSION
Should our warranty and exclusion be unacceptable we are prepared to
negotiate for variation in their terms but only on the basis of an increase
in the price to allow for any additional liability or risk which may result
from the variation.
Purchasers are advised to insure against any risk or liability which they may
incur and which is not covered by our warranty.
11. RISK AND RETENTION OF TITLE
(a) goods supplied by us shall be at the Purchaser's risk immediately upon
delivery to the Purchaser or into custody on the Purchaser's behalf or to
the Purchaser's Order. The Purchaser shall effect adequate insurance of
the goods against all risks to the full invoice value of the goods, such
insurance to be effective from the time of delivery until property in the
goods shall pass to the Purchaser as herinafter provided.
(b) property in the goods supplied hereunder will pass to the Purchaser when
full payment has been made by the Purchaser to us for :-
(i) the goods of the subject of this contract.
(ii) all other goods the subject to of any other contract between the
Purchaser and us which, at the time of payment of the full price of the goods
sold under this contract, have been delivered to the Purchaser but not paid
for in full.
(c) until property in the goods supplied hereunder passes to the Purchaser
in accordance with paragraph (2) above.
(i) the Purchaser shall hold the goods in a fiduciary capacity for us and shall
store the same separately from any other goods in the Purchaser's
possession and in a manner which enables them to be identified as our goods.
(ii) the Purchaser shall immediately return the goods to us should our
authorised representative so request. All the necessary incidents associated
with a fiduciary relationship shall apply.
(d) the Purchaser's right to possess the goods shall cease forthwith upon
the happening of any of the following events, namely :-
(i) if the Purchaser fails to make payment in full for the goods within the
time stipulated in clause 4 hereof.
(ii) if the Purchaser, not being a company, commits any act of bankruptcy,
makes a proposal to his or her creditors for a compromise or does anything
which would entitle a petition for a Bankruptcy Order to be presented.
(iii) if the Purchaser, being a company, does anything or fails to do anything
which would entitle an adminstrator or an adminstrative receiver or a
receiver to take possession of any assets or which would entitle any person
to present a petition for winding up or to apply for an adminstration order.
(e) the Purchaser hereby grants to us an irrevocable licence to enter at any
time any vehicle or premises owned or occupied by the Purchaser or in the
possession of the Purchaser for the purposes of repossessing and recovering
any such goods the property in which has remained in us under paragraph
(2) above. We shall not be responsible for and the Purchaser will indemnify
(f) notwithstanding paragraph (3) hereof and subject to paragraph (7)
hereof, the Purchaser shall be permitted to sell the goods to third parties
in the normal course of business. In this respect the Purchaser shall act in
the capacity of our commission agent and the proceeds of such sale :-
