1. INTERPRETATION. In these Conditions: (i) BUYER means the person whose order for Goods is accepted by WSP; (ii) WSP means WSP Textiles Ltd as applicable (iii) CONDITIONS means the standard terms and conditions set out in the document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between Buyer and WSP; (iv) GOODS means goods (including any instalment of the goods) described which WSP is to supply in accordance with these Conditions; and (v) CONTRACT means the contract for the sale and purchase of the Goods upon and subject to the Conditions between WSP and Buyer. The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. BASIS OF THE CONTRACT. (2.1) Unless otherwise expressly agreed in writing signed by a Director of WSP these Conditions shall govern all contracts between WSP and Buyer. No condition warranty or other term of any order submitted by Buyer or which Buyer may seek to impose shall apply to WSP. (2.2)These Conditions shall have effect in place of any other conditions which may previously have been notified by WSP to Buyer or referred to in negotiations leading to the Contract. (2.3) WSP’s price lists, quotations or proposals are without commitment and accordingly WSP may vary or withdraw the same at any time (notwithstanding any purported acceptance by Buyer) and in the absence of an order any quotation or proposal shall be deemed withdrawn 30 days after its issue by WSP. (2.4) No contract for the supply of Goods shall be binding on WSP unless Buyer has sent to WSP an order for the Goods and WSP has sent its written acceptance of the order to Buyer. (2.5) No order which has been accepted by WSP may be varied or cancelled by Buyer except with the agreement in writing of a Director of WSP and then only on terms that Buyer indemnifies WSP in full against all loss (including loss of profit) costs, (including the costs of all labour and materials used) damages, charges and expenses incurred by WSP as a result of variation or cancellation. (2.6) Samples are sent solely to enable Buyer to judge the quality of the bulk and shall not render any sale a sale by sample. All samples are to remain the property of WSP and to be returned to WSP on request. (2.7) Any advice, representation or recommendation given by WSP or its employees or agents to Buyer or its employees or agents as to the Goods, their storage application, fitting or use or as to the incorporation of the Goods or certain of them with other goods, is followed or acted upon entirely at Buyer’s own risk unless confirmed in writing by an authorised representative of WSP. Accordingly, WSP shall not be liable for any such advice or recommendation and Buyer acknowledges that it does not rely on and waives any claim for breach of any such representation which is not so confirmed.
3. SUPPLY OF GOODS AND SPECIFICATIONS. (3.1) WSP will take all reasonable steps up to the time of delivery or collection to ensure that Goods supplied are in accordance with the description set out overleaf and any specification agreed with Buyer. (3.2) Buyer must satisfy itself as to the specification quality and fitness for its purpose of the Goods before taking delivery and Buyer shall not in any way rely upon WSP’s skill or judgment. (3.3) Buyer shall be responsible for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by Buyer and for giving WSP any necessary information relating to the Goods within a sufficient time to enable WSP to perform the Contract in accordance with its terms. (3.4)The quantity, quality and description of and any specification for the Goods shall be as set out on the invoice. (3.5) If the Goods are to be manufactured or any process is to be applied to the Goods by WSP in accordance with a design or specification submitted by Buyer, Buyer indemnifies WSP against all loss, damage, costs and expenses awarded against or incurred by WSP in connection with or paid or agreed to be paid by WSP in settlement of any claim for infringement of any patent, copyright, design, trademark, or other industrial or intellectual property rights of any other person which result from WSP’s use of Buyers design or specification.
4. BROCHURES, PRICE LISTS etc. All designs specifications brochures catalogues price lists and all advertising matter are the copyright of and shall remain the property of WSP and must not be copied, reproduced or divulged either directly or indirectly to any other person without WSP’s prior written permission and may be varied, withdrawn or cancelled by WSP at any time.
5. DELIVERY. (5.1) Save and to the extent that any delivery dates are expressly stated in WSP’s order confirmation to be guaranteed, all times specified by WSP for delivery of the Goods are made honestly and on reasonable grounds but are estimates only and to the extent permitted by law WSP shall not be liable for delay or for any damage or inconvenience suffered by Buyer as a result of such dates not being met. Delivery dates whether guaranteed or not shall be extended by such time as results from any delay caused by any default of Buyer (including but not limited to default in due payment under any Contract) or by any other matter beyond the reasonable control of WSP. (5.2) Manufacture and delivery of any Goods may at any time be suspended and/or withheld pending payment of any sum due on any account whatsoever from Buyer to WSP (including but not limited to any other contract between WSP and Buyer). (5.3) Unless otherwise agreed delivery of the Goods shall be effected on the earlier of: (5.3.1) WSP delivering the Goods to the delivery address stated overleaf or such other place as Buyer nominates before dispatch and the unloading of all Goods shall be promptly performed by Buyer at Buyers own risk and expense; or (5.3.2) WSP delivering the Goods to a storage facility pursuant to Clause 5.6. (5.4) Unless otherwise agreed in writing WSP is entitled to make deliveries by instalments or partial deliveries. Each instalment shall be construed as constituting a separate agreement to which all the provisions of these Conditions shall (with any necessary alterations) apply. Failure by WSP to deliver any one or more instalments in accordance with these Conditions or any claim by Buyer in respect of any one or more instalments shall not entitle Buyer to treat the Contract as a whole as repudiated. (5.5) Where Buyer is entitled to call off Goods under the Contract at intervals he shall take delivery of the Goods promptly upon the delivery dates or at the intervals stated in the Contract or as soon thereafter as he is notified by WSP that the Goods are available for delivery. (5.6) If for any reason Buyer fails to call off or give delivery instructions or take delivery of the Goods on the due date or upon receipt of notification by WSP that the Goods are ready for delivery or otherwise causes or requests a delay in delivery so that WSP cannot deliver in accordance with Clause 5.3.1 of this Agreement, WSP shall be entitled to require Buyer to store or arrange for the storage of the Goods and if Buyer fails to do so within 7 days of being required to do so WSP shall be entitled as Buyer’s agent to arrange for such storage and insurance of the Goods. For the avoidance of doubt such storage or arrangement for storage shall constitute delivery for all purposes under this Agreement and the following shall apply: (5.6.1) Buyer shall provide to WSP delivery address of Buyer’s storage facilities within 7 days of WSP requesting such address; (5.6.2) Where WSP has arranged storage as Buyer’s agent WSP shall notify Buyer in writing about the storage and / or arrangements for storage; (5.6.3) WSP shall upon reasonable notice use its reasonable endeavours to procure access to the Goods for the purposes of Clause 6 of these Conditions; and (5.6.4) Buyer shall pay or reimburse the reasonable cost (including insurance) of such storage from the due date or the date of such notification until the Goods are moved from storage to premises in accordance with Clause 5.3.1. This provision is without prejudice to any other rights of WSP hereunder. (5.8) Should any of the Goods remain undelivered for a period of 10 weeks or more after the delivery date as extended in accordance with Clauses 5.1 and 5.2 above in the case of Goods for which a delivery date has been guaranteed and for a period of 20 weeks from such date in the case of other Goods then Buyer shall have the option by notice in writing to WSP to cancel the Contract in respect of such undelivered Goods. Any such cancellation shall be without prejudice to the other rights of the parties under the Contract and in particular shall be without prejudice to WSP’s rights to be paid for such part of the Goods as had been delivered and shall be without prejudice to Buyer’s rights to claim liquidated damages in respect of the cancelled Goods in accordance with the terms of Clause 5.7 above.
6. INSPECTION ACCEPTANCE and REJECTION. (6.1) Buyer shall open and examine all Goods on delivery including delivery pursuant to Clause 5.3.2. (6.2) Any complaint whatsoever about the Goods or short delivery must be notified in writing to WSP within 2 days of delivery or collection of the Goods in the case of short delivery and 5 days of delivery in all other cases and WSP must be given the opportunity to inspect and measure or test the Goods before Buyer disposes of the same and Buyer shall permit WSP or its representatives to enter its premises for the purpose of taking samples for analysis. (6.3) If delivery is not refused or Buyer does not notify WSP within such time and/or does not give WSP the opportunity to inspect and test the Goods Buyer shall not be entitled to reject the Goods and WSP shall have no liability for any defect in or loss or damage to the Goods whenever or howsoever arising (except in the case of latent fault or defect not ascertainable by reasonable examination) and Buyer shall be bound to pay the price. (6.4) If the Goods are not defective or, are defective only as a result of circumstances for which WSP is not liable, Buyer shall if WSP requires, pay a reasonable charge for the analysis of the Goods.
7. PRICE. (7.1) The price of the Goods shall be the quoted price, or where no price has been quoted or where the quoted price is no longer valid the price listed in WSP’s published price list current at the date of acceptance of the order and includes the cost of effecting delivery of the Goods within the United Kingdom in accordance with Clause 5.3. (7.2) WSP reserves the right by giving notice to Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to WSP which is due to any factor beyond the control of WSP (such as without limitation, any foreign exchange fluctuation, currency fluctuation, alteration of duties, significant increase in the cost of labour materials or other costs of manufacture), any change of delivery dates, quantities or specifications for the Goods which is requested by Buyer, or any delay caused by any instructions of Buyer or failure of Buyer to give WSP adequate information or instructions. Any additional cost incurred by WSP on account of alterations made at Buyers request to quantities, dates or rates of delivery or to the specification of Goods or to the date of installation shall be borne by Buyer. (7.3)The price is exclusive of any applicable value added tax which Buyer shall be additionally liable to pay to WSP. (7.4) Should any duty tax levy or any other payment whatsoever be imposed by the European Economic Community or any member national government thereof relating to the Goods before delivery thereof, Buyer shall bear the burden of such duty tax or other payment and the costs arising therefrom.
8. PAYMENT. (8.1)The price for the Goods shall be paid in full in accordance with the payment terms set out on the invoice. WSP shall be entitled to submit its invoice for the Goods on or after the date of effecting delivery in accordance with Clause 5.3. Any part of the price not paid on the due date shall without prejudice to any of WSP’s other rights or remedies bear interest (both before and after judgment) on a day to day basis on balances outstanding (including interest already accrued) at a rate of 2% per month from the due date until the date of actual payment. WSP shall be entitled to submit its invoice(s) for storage and insurance effected pursuant to Clause 5.6 at weekly or other less frequent intervals chosen by WSP and such invoices shall be payable within 7 days of date of invoice. (8.2) Time of payment is in all cases of the essence. (8.3) If the Contract provides for delivery by instalments and default in payment on due date is made for any one delivery or where Clause 5.3.2 applies and Buyer fails to pay following such delivery WSP shall (without prejudice to any other right or remedy) be entitled to treat the Contract as repudiated by Buyer. (8.4) Buyer shall not in any circumstances or for any reason whatsoever be entitled to make any deduction or withhold any sum from the price of the Goods by way of set-off.
9. PASSING OF PROPERTY. (9.1) Unless otherwise agreed, the provisions of this Clause 9 shall apply to the passing of property in the Goods supplied by WSP. (9.2) Notwithstanding the provisions of Clause 10 as to the passing of risk, Goods supplied by WSP under the Contract shall remain the sole and absolute property of WSP until Buyer has paid in full the agreed price whether under the Contract or in respect of any other delivered goods the subject of any other business transaction between Buyer and WSP (including any value added tax and interest thereon). Notwithstanding such retention of title WSP shall be entitled to maintain an action for the price of the Goods as soon as payment falls due. (9.3) Buyer acknowledges that it is in possession of the Goods solely as bailee and in a fiduciary capacity for WSP until such time as the agreed price thereof has been paid in full or the Goods have been re-sold in the ordinary course of Buyer’s business. Until such time Buyer will store the Goods on its premises separately from others’ Goods (including its own) and in a manner which makes them readily identifiable as belonging to WSP and shall not alter modify or add to any such Goods or any marking or identification on them and shall maintain them in good condition. (9.4) If payment for the Goods supplied under the Contract or for any other delivered goods referred to in this Clause 9 is overdue in whole or in part WSP may (without prejudice to any of its other rights) retake possession of and/or sell any goods the title to which it has retained and the Buyer shall upon WSP’s request allow WSP to enter its premises during normal working hours for the purpose of recovering possession of such goods. (9.5) Subject to the provisions of this Clause and notwithstanding that the property in the Goods has not passed Buyer may resell the Goods in the ordinary course of its business. (9.6) Where Buyer resells the Goods before title thereto has passed Buyer shall sell as agent for WSP pending payment of all sums due to WSP under the Contract and shall keep the proceeds of sale (less Buyer’s profit margin) in a separate account not use the same and hold the same on trust for WSP. Notwithstanding the provisions of this Clause vis-à-vis a third party Buyer shall sell only as a principal. (9.7) Buyer shall not in any circumstances place the proceeds of sale of Goods supplied by WSP in any overdrawn bank account so long as any sum payable to WSP in respect thereof remains outstanding.
10. PASSING OF RISK. Notwithstanding the provisions of Clause 9, the risk of loss or damage to the Goods shall pass to Buyer on delivery to Buyer (including pursuant to Clause 5.3.2) or where delivery is by a carrier appointed by Buyer on delivery to such carrier as evidenced by Buyer’s or Buyer’s agent’s signature on WSP’s delivery note.
11. WARRANTIES AND LIMITATION OF LIABILITY. (11.1) Subject to these Conditions WSP warrants that the Goods will correspond with their description at the time of delivery and will unless otherwise stated be free from defects in material and workmanship which become manifest and are notified to WSP in writing within a period of 6 months from delivery. (11.2) The above warranty is given by WSP subject to the following conditions: (i) WSP shall be under no liability in respect of any defect in Goods arising from any drawing, design or specification supplied by Buyer; (ii) WSP shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, unsuitable storage handling or treatment prior to use, pile crushing, abnormal use or use under abnormal conditions, failure to use appropriate adhesive, failure to follow WSP’s instructions (whether oral or in writing), misuse, exposure to direct weather conditions, or alteration (whether by cutting, conversion or processing) or repair of the Goods in any way after delivery without WSP’s approval; (iii) WSP shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment. (11.3) Subject as expressly provided in these Conditions, and except where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. (11.4) Subject to these Conditions the liability of WSP to Buyer in respect of any defect in the quality or condition of the Goods or their failure to meet specification shall be limited: (i) where such defect or failure is in respect of the whole of the Goods, to replacing the Goods or at its option repaying the invoice price of the Goods; (ii) where such defect or failure is in respect of part of the Goods, to replacing that part of the Goods or at its option repaying the proportion of the invoice price which that part of the Goods bears to the invoice price of all of the Goods. (11.5) Except in respect of death or personal injury caused by WSP’s negligence, WSP shall not be liable to Buyer by reason of any representation or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (including any claim for damages or an indemnity in respect of any sum paid or payable to any third party and any claim in respect of loss of revenue, profits or of any contract) which arise out of or in connection with the supply of the Goods or their use or resale by Buyer and whether caused by the negligence of WSP its employees or agents or otherwise, except as expressly provided in these Conditions. (11.6) WSP shall not be liable to Buyer or be deemed to be in breach of the Contract by reason of any non-delivery or partial deliveries or delay in performing, or any failure to perform any of WSP’s obligations if the delay or failure was due to any cause beyond WSP’s reasonable control including (without prejudice to the generality of the foregoing) weather conditions, lock-outs or other industrial actions or trade disputes (whether involving employees of WSP or of a third party); inability to obtain raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery. (11.7) No provision contained in this Clause 11 shall exclude or limit the liability of WSP if and to the extent that such liability arises out of the fraud or fraudulent misrepresentation of WSP.
12. USER WARNINGS. Any advertisements, consumer information or labelling (“the Literature”) supplied by WSP relating to the Goods, has been prepared to comply with statutory regulations (if any) relating to the Goods and with a view to providing information for users as to the physical characteristics of the Goods and precautions to be taken with regard to their use. Buyer undertakes to WSP: (i) only to use in relation to the Goods Literature supplied or approved in writing by WSP; (ii) not to remove from the Goods prior to re-sale any Literature supplied with the Goods by WSP; (iii) not to supply the Goods on re-sale without Literature as supplied by WSP; (iv) not to make any statement, representation or claim or give any warranty to any person in respect of the Goods save as in WSP’s Literature or as specifically authorised by WSP; and (v) not to use or knowingly permit to be used the Goods outside the purpose described by WSP.
13. INDEMNITY. (13.1) Buyer indemnifies WSP in respect of all damage or injury to any person or loss of or damage to any property and against all actions, suits, claims, demands, costs, charges or expenses arising at common law or under the Consumer Protection Act 1987 or otherwise under statute as a result of: (i) Buyer failing to identify or notify WSP of any defect in the Goods as required by these Conditions. (ii) any of the circumstances set out at in the second sentence of Clause 11 hereof. (iii) any failure by Buyer to comply with the provisions of Clause 12 hereof.
14. INSOLVENCY OF BUYER. (14.1) This Clause applies if Buyer makes a voluntary arrangement with creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), or a receiver is appointed on any of the property or assets of Buyer, or WSP apprehends that any of the events mentioned above is about to or appears likely to occur in relation to Buyer and notifies Buyer accordingly. (14.2) If this Clause applies then without prejudice to any other right or remedy available to WSP, WSP shall be entitled to cancel the Contract or suspend any further deliveries without liability to Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
15. OVERSEAS SALES. (15.1) In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provision of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between any provision of Incoterms and these Conditions, the latter shall prevail. (15.2) Where the Goods are supplied for export from the United Kingdom, the provisions of this Clause 15 shall (subject to any special terms agreed in writing between Buyer and WSP) apply notwithstanding any other provision of these Conditions. (15.3) Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon. (15.4) Unless otherwise agreed in writing between Buyer and WSP, the Goods shall be delivered FOB to sea port of shipment and WSP shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979. (15.5) Buyer shall be responsible for arranging for testing and inspection of the goods at WSP’s premises before shipment. WSP shall have no liability for any claim in respect of any defects in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit. (15.6) Payment for all amounts due to WSP shall be made by made in accordance with agreed credit terms. (15.7) Buyer undertakes not to offer the Goods for resale outside the EEC at or before the time Buyer’s order is placed, or to sell the Goods to any person if Buyer knows or has reason to believe that person intends to resell the Goods in any country outside the EEC.
16. GENERAL. (16.1) Any notice required or permitted to be given by either party to the other under these Conditions or the Contract based thereon shall be in writing addressed to the other party at its registered office or principal place of business or such other address specified pursuant to this Clause and sent by pre-paid first class post, or telex. Any notice sent by post shall be deemed served three days after dispatch. Any notice sent by telex shall be deemed served 24 hours after dispatch. (16.2)No waiver by WSP of any breach of contract by Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. (16.3) If any provision of these Condition is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby. (16.4) Buyer shall not assign the Contract or any of its rights and obligations thereunder without the prior written consent of WSP. (16.5)These Conditions and the Contract based thereon shall be governed by and construed and performed in all respects in accordance with the Laws of England and the parties submit to the non-exclusive jurisdiction of the English Courts. (16.6) These Conditions and the Contract based thereon shall be entered into in the English language only and notwithstanding any translation of the same into the language native to any person a party hereto, only the English language version of the Conditions and the Contract shall apply to, or be used or referred to, for the purposes of the construction, validity and performance of the Conditions and/or the Contract and any dispute or difference between the parties arising from or in connection with the Conditions and/or the Contract. (16.7) The operation of the Contracts (Rights of Third Parties) Act 1999 (the 1999 Act) is excluded and shall not apply and the parties to the Contract may amend vary or terminate it or any conditions in such a way as may affect any rights or benefits of any third party which would but for this Condition be directly enforceable against the parties under the 1999 Act without the consent of such third party.