|TERMS AND CONDITIONS
1. In these Conditions: “Buyer” means the customer named overleaf; “Contract” means the contract for the purchase and sale of the Goods and Services subject to these Conditions; “Conditions” means the terms and conditions set out below; “Goods” means the goods (including any installments or parts) which the Seller is to supply; “Seller” means Chartfords Inc (Business Number: 82115 9621 RT0001); “Services” the services (including any repair work or installments) which the Seller is to perform; any gender includes any other gender; headings shall not affect interpretation; any reference to a statutory provision includes a reference to any modification or re-enactment of the provision from time to time in force.
BASIS OF THE SALE
2. The Seller shall sell and the Buyer shall buy the Goods and the Services subject to these Conditions, which supersede any other terms and which govern the Contract to the exclusion of any terms and conditions which the Buyer purports to apply or which are implied by trade, custom or course of dealing. No terms or conditions endorsed upon, delivered with or contained in the Buyer’s order or other document will form part of the Contract simply as a result of such document being delivered to the Seller or referred to in the Contract. Any variation to these Conditions is of no effect unless agreed in writing by an authorized representative of the Seller. The Seller’s employees or agents are not authorized to make any representation concerning the Goods or Services unless confirmed by the Seller in writing.
3. Except in relation to any fraud, these Conditions constitute the entire agreement between Buyer and Seller for the supply of the Goods and the Services.
QUOTATIONS, ORDERS AND SPECIFICATIONS
4. A quotation by the Seller is not an offer. Quotations are valid for 30 days only and subject to withdrawal or revision at any time before acceptance of the Buyer’s order by the Seller. Each order for Goods and/or Services by the Buyer is an offer by the Buyer to purchase the Goods and/or Services subject to these Conditions. No order submitted by the Buyer by whatever means is accepted by the Seller until the Seller confirms its written acceptance or (if earlier) the Seller delivers the Goods or supplies the Services to the Buyer. The Buyer must ensure that the terms of any order (including any specification) are complete and accurate and that it gives to the Seller any necessary information relating to the Goods and Services within a sufficient time to enable the Seller duly to perform the Contract. The Seller reserves the right to make any changes in the specification of the Goods or Services which are required for the Goods or Services to conform with any applicable safety or other statutory requirements.
5. All descriptions, samples and illustrations issued by the Seller are intended merely to present a general idea of the Goods and Services described and do not form part of the Contract. Whilst every effort will be made to supply the Goods in accordance with the quality of samples submitted or quoted for, this cannot be guaranteed and no condition or warranty to this effect shall be implied.
CANCELLATION AND DELAY
6. No order may be cancelled by the Buyer except with the Seller’s written agreement (which may be given subject to such terms as the Seller may specify.
7. The Seller reserves the right to defer the date of delivery or performance, to cancel the Contract or reduce the volume of Goods ordered without liability to the Buyer if it is prevented from or delayed in carrying on its business by any cause beyond the Seller’s reasonable control which includes (without limitation) Act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary, local or other authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party), difficulties in obtaining raw materials, labor, fuel, parts or machinery, power failure or breakdown in machinery. In such circumstances, the Buyer may also give written notice to cancel the Contract if the cause in question continues for a continuous period in excess of 180 days but in any event shall remain liable to pay for Goods or Services delivered or supplied prior to such cancellation by the Seller or the Buyer.
8. The price of the Goods and Services is the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of delivery or supply. The Seller reserves the right at any time before delivery or performance to amend the price of the Goods or Services to take into account any variation in cost to the Seller. Any price quoted by the Seller for the Goods is exclusive of the cost of delivery to the Buyer (including transport, packaging, insurance and any taxes, duties or surcharges). The price is exclusive of any applicable tax.
9. Payment of the price for the Goods and Services is due at the time of delivery or deemed delivery. Time of payment is of the essence. For the purposes of these Conditions, payment is received when the Seller receives it in cleared funds. Payment by the Buyer shall be made without any deduction or set off. The Seller is entitled to set off sums owed by the Seller to the Buyer against sums owed by the Buyer to the Seller. The Seller reserves the right to claim interest and compensation for debt recovery costs. Despite any provision allowing credit, payment is due and payable to the Seller immediately upon cancellation or termination of the Contract.
10. If the Buyer fails to make any payment on the due date then the whole price of all goods or services bought or agreed to be bought by the Buyer shall be immediately due and payable without demand and the Seller may cancel the Contract or suspend deliveries or performance to the Buyer.
11. Delivery of the Goods shall be within the time agreed and if no time is agreed, within a reasonable time by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place at the Buyer’s cost. The Seller may make delivery by installments. Any dates for delivery and/or performance are approximate only and time of delivery and/or performance is not of the essence.
12. No claim for damage or shortages will be considered unless the Seller is given written notice within seven days of delivery. If no such notice is received by the Seller, the Buyer is deemed to have accepted the Goods. In the event of failure by the Buyer to give the appropriate notices as specified by these Conditions any claim by the Buyer is deemed to have been waived.
13. Where the Goods are to be delivered or Services are to be performed in installments, each delivery or performance shall be a separate contract and failure by the Seller to deliver or perform any one or more of the installments in accordance with these Conditions or any claim by the Buyer in respect of any one or more installment shall not entitle the Buyer to treat the Contract as a whole as repudiated.
14. If the Buyer fails to take delivery of the Goods or the Seller is unable to deliver the Goods on time because the Buyer has not provided adequate instructions, documents, licenses or authorizations, then the Goods are deemed delivered and the Seller may: store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
RISK AND PROPERTY
15. The Goods remain the property of the Seller until their full price has been received by the Seller and all other sums which are or which become due from the Buyer on any account with the Seller have been received by the Seller. The Goods are at the risk of the Buyer from the time of delivery. 16. If payments received from the Buyer are not stated to refer to a particular invoice the Seller may appropriate such payments to any outstanding invoice
17. Until ownership of the Goods passes to the Buyer, the Buyer must store them at its own cost on its premises separately from any other goods and in a manner which makes them readily identifiable as the goods of the Seller; not destroy, deface or obscure any identifying mark or packaging of the Goods; maintain the Goods in a satisfactory condition insured on the Seller’s behalf for their full price against all risks and hold the proceeds of insurance referred to in these Conditions on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn account. The Seller may, so as to discharge any overdue payment, recover or resell the Goods. In order to verify the Buyer’s compliance with its obligations under these Conditions and to exercise its rights under them, the Seller shall be entitled by its employees or agents without notice to enter the Buyer’s premises or such other premises where the Goods are stored. The Buyer’s right to possession of the Goods terminates immediately if any of the events set out in Condition 24 occurs.
18. If the Goods are sold by the Buyer before payment for them has been made, that part of the proceeds of sale which represents or is equivalent to the amount owed by the Buyer to the Seller shall be held by the Buyer upon trust for the Seller and shall be paid into a separate bank account designated for that purpose. The Seller shall be entitled to trace the proceeds of any such sales into such bank account (or wherever such proceeds may in fact be located) and the Buyer authorizes the Seller to make enquiries of its bankers (or otherwise as appropriate) relating to such proceeds.
LIMITATION OF LIABILITY
19. The following sets out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents or subcontractors) to the Buyer in respect of any breach of these Conditions, and any representation, statement or act or omission (including negligence) arising under or in connection with the Contract and in respect of any contemplated performance or lack of performance.
20. All warranties, conditions or other terms implied by statute, common law, trade usage or otherwise are excluded to the fullest extent permitted by law but this exclusion does not apply to: any implied condition that the Seller has or will have the right to sell the Goods when the property is to pass; or where the Goods are sold to a person dealing as a consumer, any implied term relating to the conformity of the Goods with their description or sample or as to their quality or fitness for a particular purpose.
21. Where the Goods or Services are sold under a consumer transaction the statutory rights of the Buyer are not affected by these Conditions.
22. Nothing in these Conditions excludes or limits the Seller’s liability for death or personal injury caused by the Seller’s negligence or for fraudulent misrepresentation.
23. Subject to Conditions 20 and 22:-
23.1.1 the Seller shall not be liable to the Buyer for any loss of profit, loss of production, financial loss, depletion of goodwill which arise out of or in connection with the Contract or its contemplated performance of lack of performance; and
23.1.2 subject to Condition 23.1.1, the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance or lack of performance of this Contract shall be limited to the contract price.
24. The Seller may terminate the Contract immediately upon the happening of any one or more of the following: the Buyer is dissolved or has a bankruptcy order made against him or makes an arrangement or composition with his creditors; or the Buyer (being a body corporate) convenes a meeting of creditors or enters into liquidation (whether voluntary or compulsory); or the Buyer has a receiver, manager, administrator or administrative receiver appointed of the whole or any part of its undertaking, property or assets; or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer; or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer in any jurisdiction to which the Buyer or any of its assets is subject; or the Buyer has, suffers or allows any execution to be levied on its assets or obtained against it; or the Buyer commits a material breach of any of its obligations under the Contract or under any other contract with the Seller; or the Buyer is unable to pay its debts or the Buyer ceases or threatens to cease to trade.
25. Termination of the Contract shall not affect rights and duties accrued before termination and in particular shall not affect the Seller’s rights contained in these Conditions. However, the Buyer’s rights contained in these Conditions shall immediately terminate.
26. The Seller shall have a general lien (together with a power of sale) on all property owned by the Buyer in the Seller’s possession in satisfaction of any payment due or owing from the Buyer on any account.
27. Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller, whether or not under the Contract. Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract is not a waiver of any of its rights under the Contract. Any waiver by the Seller of any breach by the Buyer is not a waiver of any subsequent breach.
28. If any provision of the Contract (including any provision of these Conditions) is found by any competent authority to be invalid, unenforceable or unreasonable, it shall be severed from the remainder of the Contract which shall continue in full force and effect.
29. Any notice to be given by either party to the other under these Conditions must be in writing addressed to that other party at its registered office or principal place of business or such other address as may have been notified for these purposes. Notices shall be delivered personally or sent by first class post or sent by facsimile transmission. A notice is deemed to have been received: if delivered personally, at the time of delivery; if sent by prepaid first class post, on the second working day after posting (exclusive of the day of posting).
30. The Contract does not create, confer or purport to confer any benefit or right enforceable by any person not a party to it by virtue of the Contracts.
31. The Seller may assign or subcontract the Contract or any part of it and may dispose of or deal in any manner with any of its rights or beneficial interests under it. The Buyer may not assign the Contract or dispose of or deal in any manner with any of its rights or beneficial interests under it.
32. The Contract shall be governed by the laws of Canada, and the parties submit to the exclusive jurisdiction of the courts of Canada. This Condition is for the benefit of the Seller only and as a result the Seller shall not be prevented from taking proceedings in any other courts with jurisdiction, whether concurrently or not.