STANDARD TERMS AND CONDITIONS OF SALE – MANTON FEBRUARY 2009 EDITION

1

	DEFINITIONS AND RULES OF INTERPRETATION

1.1  The definitions and rules of interpretation set out below apply to these  terms and conditions.

Buyer	The person, firm, company or other legal entity who purchases the Goods from the Company.
Company	Manton, an unlimited company, with company registration number 06349549.
Contract	Any contract between the Company and the Buyer for the sale and purchase of the Goods.
Delivery Point	The place where delivery of the Goods is to take place under paragraph 4.
Goods	Any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).

1.2  A reference to a particular statute is a reference to it as it is in force at the time when the contract is formed taking into account any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3  Words in the singular include the plural, and in the plural include the singular.

1.4  A reference to one gender includes a reference to the other gender.

1.5  Paragraph headings do not affect the interpretation of these terms and conditions.

2 Application of terms

2.1  Subject to any variation under paragraph 2.4, the Contract shall incorporate these terms and conditions to the exclusion of all other terms and conditions.

2.2  No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract.

2.3  The Buyer acknowledges that it has not been induced to enter into the Contract on the basis of any representations made by the Company and that its decision to purchase the Goods is based on their own assessment of their suitability.

2.4  Variations to these terms and conditions will only be binding if they are confirmed in writing by the Company’s Managing Director.

2.5  The Buyer shall ensure that the description in its order and any applicable specifications are complete and accurate.

2.6  By accepting the Contract, the Buyer warrants that:

(i) he/it has complied and will comply with every applicable legal requirement; and

(ii) he/it has lawfully obtained every licence, permit or authority that may be required in connection with the Goods.

2.7  The Buyer will cooperate in good faith with the Company during performance of the Contract.

3 Description

3.1  The quantity and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order.

3.2  All samples, descriptive materials, specifications and advertising issued by the Company are published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.

4 Delivery

4.1  Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company’s place of business.

4.2  Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are specified, delivery shall be within a reasonable time.

4.3  The Company shall not be liable for any direct, indirect or consequential loss (including without limitation pure economic loss, loss of profit, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods, nor shall any delay entitle the Buyer to terminate or rescind the Contract.  Any carriage of goods by the Company will be subject to the current RHA Terms & Conditions and, where applicable the CMR Convention insofar as they are not inconsistent with these Terms.  In the event of a conflict these Terms  shall where permitted take precedence.

4.4  If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the goods because the Buyer has not provided appropriate instructions, documents, licences or authorisations:

(i) risk in the Goods shall pass to the Buyer (including loss or damage caused by the Company’s negligence);

(ii) the Goods shall be deemed to have been delivered; and

(iii) the Company may at their discretion store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including without limitation, storage and insurance).

4.5  Where the Company delivers the Goods to the Buyer’s premises or another location specified by the Buyer then the Buyer shall provide at the Delivery Point, at its own expense adequate equipment and labour for transportation and unloading of the Goods.

4.6  If the Company delivers to the Buyer a quantity of Goods of up to 10% more or less than the quantity the Company has contracted to supply, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such Goods at the pro rata Contract rate.

4.7  The Company may deliver the Goods by separate instalments.  Each separate instalment shall be invoiced and paid pro rata to the Contract total.

4.8  Each instalment shall be treated as a separate Contract and no cancellation or termination of any one instalment shall entitle the Buyer to repudiate or cancel the remainder of the contract.

4.9  Where returnable containers are supplied they become the responsibility of the Buyer whilst in his/its possession. If such containers are lost, damaged or destroyed then the Buyer will be liable to compensate the Company with an amount equivalent to their purchase price when new or the cost of a suitable replacement, whichever is cheaper. Where pallets are supplied, they will be on an exchange basis.

4.10      The Buyer shall produce all insurance documentation relating to the Contract upon the Company’s reasonable request.

5 Non-delivery

5.1  The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be deemed to be the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence to the contrary.

5.2  The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within seven (7) days of the date when the Goods should have been received.

5.3  The Company’s liability for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time [or issuing a credit note at the pro-rata Contract rate against any invoice raised for such Goods] providing the Company receives the relevant notice as set out in paragraph 5.2.

6 risk/title

6.1  The Goods are at the risk of the Buyer from the time of delivery.  If the Goods are being delivered to the Buyer’s premises or another location specified by the Buyer then the risk in the Goods will pass to the Buyer once the Goods pass over the boundary to those premises.

6.2  Ownership of the Goods shall not pass to the Buyer until the Company has received payment in full (in cash or cleared funds) in respect of:

(i) the Goods; and

(ii) all other sums which are or which become due to the Company from the Buyer on any account.

6.3  Until ownership of the Goods has passed to the Buyer, the Buyer shall:

(i) hold the Goods on a fiduciary basis as the Company’s bailee;

(ii) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;

(iii) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and

(iv) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company.  On request the Buyer shall produce the policy of insurance to the Company.

6.4  The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:

(i) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and

(ii) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.

6.5  The Buyer’s right to possession of the Goods shall terminate immediately if:

(i) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the Court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its Directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), 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; or

(ii) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay his/its debts within the meaning of Section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or

(iii) the Buyer encumbers or in any way charges any of the Goods.

6.6  The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.

6.7  The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.

6.8  Where the Company is unable to determine whether any Goods are the Goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all Goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.

6.9  On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this paragraph 6 shall remain in effect.

7 Price

7.1  Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s written acknowledgement of the order.

7.2  Unless specifically agreed the price will not include delivery.

7.3  Prices are subject to Value Added Tax charged at the prevailing rate at the date of actual or deemed delivery.

8 Payment

8.1  Subject to paragraph 8.4, payment of the price for the Goods is due in pounds sterling within thirty (30) days of the date of the delivery.

8.2  Time for payment shall be of the essence.

8.3  No payment shall be deemed to have been received until the Company has received cleared funds.

8.4  All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.

8.5  The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counter-claim, discount or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer or the Company has agreed to the deduction in writing.

8.6  If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at a daily rate equivalent to an annual rate of 3% above the base lending rate from time to time of Barclays Bank, accruing on a daily basis until payment is made, whether before or after any judgement, unless otherwise agreed by the Company in writing.  The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998, as an alternative.

9 quality

9.1  The Company warrants that on delivery the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.

9.2  The Company shall not be liable for a breach of the warranty in paragraph 9.1 unless:

(i) the Buyer gives written notice of the defect to the Company within three (3) days of delivery (excluding weekends and Bank Holidays); and

(ii) the Company is given a reasonable opportunity after receiving the notice to examine such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Buyer’s cost for the examination to take place there.

9.3  The Company shall not be liable for a breach of the warranty in paragraph 9.1 if:

(i) the Buyer makes any further use of such Goods after giving such notice; or

(ii) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or

(iii) the Buyer alters such Goods without the written consent of the Company.

9.4  Complaints in respect of alleged unsatisfactory goods shall not be a ground for the Buyer to withhold payment of his accounts.

9.5  Subject to paragraphs 9.2 and 9.3, if any of the goods do not conform with the warranty in paragraph 9.1 the Company’s only obligation will be to replace such Goods as soon as reasonably practicable (or the defective part) or refund the purchase price (pro rate when only part of the consignment is unsatisfactory).

9.6  If the Company complies with paragraph 9.5 it shall have no further liability for a breach of the warranty under paragraph 9.2 in respect of such Goods.

10     Limitation of liability

10.1      Subject to paragraphs 4, 5 and 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents or sub-contractors) to the Buyer in respect of:

(i) any breach of these terms and conditions;

(ii) any use made or re-sale by the Buyer of any of the Goods or of any product incorporating any of the Goods; and

(iii) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

10.2      All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent, permitted by law, excluded from the Contract.

10.3      Nothing in these terms and conditions excludes or limits the liability of the Company:

(i) for death or personal injury caused by the Company’s negligence; or

(ii) for any matter for which it would be illegal for the Company to exclude or attempt to exclude its liability; or

(iii) for fraud or fraudulent misrepresentation.

10.4      Subject to paragraphs 10.2 and 10.3:

(i) the Company’s maximum liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to an amount equivalent to the Contract price; and

(ii) the Company shall not be liable to the Buyer for loss of profit, loss of business or depletion of goodwill in each case whether direct, indirect or consequential.

11     Assignment

11.1      The Company may assign the Contract or any part of it to any person, firm or company.

11.2      The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.

12 FORCE MAJEURE

12.1      The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, a fluctuation of more than 5% in the currency in which the Goods are being paid compared to sterling, an increase of more than 5% in the cost of energy to the company between the date when the contract was formed and delivery, an economic crisis which is caused or contributed to by the actions of the media, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.

12.2      Further and without prejudice to paragraph 12.1 the Company reserves the right to cancel the Contract if there is an outbreak of avian influenza (or a derived, mutated or similar virus) in any county in the European Union.

13     General

13.1      Each right or remedy of the Company under the Contract is without prejudice to any other rights or remedies that the Company would otherwise have.

13.2      If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability, or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provisions shall continue in full force and effect.

13.3      Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

13.4      Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

13.5      The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

13.6      The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts. The application of the uniform rules on international sales shall be excluded.

14     Communications

14.1      All communications between the parties about the Contract shall be in writing and be delivered by hand, fax or recorded delivery:

(i) (in the case of communications to the Company) to its registered office at Springfield Farm, Cold Cotes Road, Felliscliffe, Harrogate, North Yorkshire, HG3 2LW (fax number: 01423 771477), or such changed address as shall be notified to the Buyer by the Company; or

(ii) (in the case of communications to the Buyer) to the registered office of the addressee (if it is a company) or in any other case, to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.

14.2      Communications shall be deemed to have been received:

(i) if sent by recorded delivery the date on which the letter is acknowledged or

(ii) if delivered by hand, on the day of delivery; or

(iii) if sent by fax on a working day prior to 4pm at the time of transmission and otherwise on the next working day.

14.3      Communications addressed to the Company shall be marked for the attention of the Managing Director of the Company.

These Terms & Conditions are copyright and should not be reproduced or copied (whether in whole or in part), without the Company’s written permission