SOVEREIGN AIR MOVEMENT LIMITED
STANDARD TERMS & CONDITIONS OF SALE
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Buyer: the person, firm or company who purchases the Goods from Sovereign.
Contract: any contract between Sovereign and the Buyer for the sale and purchase of the Goods, incorporating these conditions.
Goods: any goods agreed in the Contract to be supplied to the Buyer by Sovereign (including any part or parts of them).
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of 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 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.2 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document). 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 simply as a result of such document being referred to in the Contract.
2.2 These conditions apply to all Sovereign’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of Sovereign. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Sovereign which is not set out in the Contract. Nothing in this condition shall exclude or limit Sovereign’s liability for fraudulent misrepresentation.
2.3 Each order or acceptance of a quotation for Goods by the Buyer from Sovereign shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions. Any quotation is valid for a period of 30 days only from its date, provided that Sovereign has not previously withdrawn it. No order placed by the Buyer shall be deemed to be accepted by Sovereign until a written acknowledgement of order is issued by Sovereign or (if earlier) Sovereign delivers the Goods to the Buyer.
2.4 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
3.1 The quantity and description of the Goods shall be as set out in Sovereign’s quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by Sovereign and any descriptions or illustrations contained in Sovereign’s catalogues or brochures are issued or 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.
4.1 Delivery of the Goods shall take place on such terms as are set out in the Contract. Any dates specified by Sovereign 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 so specified, delivery shall be within a reasonable time.
4.2 Subject to the other provisions of these conditions the Sovereign shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, 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 (even if caused by Sovereign’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.3 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or Sovereign is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations risk in the Goods shall pass to the Buyer (including for loss or damage caused by Sovereign’s negligence), the Goods shall be deemed to have been delivered, and Sovereign may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.4 The Buyer shall provide at the delivery point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
4.5 If Sovereign delivers to the Buyer a quantity of Goods of up to 4% more or less than the quantity accepted by Sovereign, 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.
4.6 Sovereign may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5.1 The quantity of any consignment of Goods as recorded by Sovereign on despatch from Sovereign’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 Sovereign shall not be liable for any non-delivery of Goods (even if caused by Sovereign’s negligence) unless the Buyer gives written notice to Sovereign of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of Sovereign 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.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until Sovereign has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to Sovereign from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
6.3.1 hold the Goods on a fiduciary basis as Sovereign’s bailee;
6.3.2 store the Goods (at no cost to Sovereign) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as Sovereign’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods in satisfactory condition and keep them insured on Sovereign’s behalf for their full price against all risks to the reasonable satisfaction of Sovereign.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
6.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
6.4.2 any such sale shall be a sale of Sovereign’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 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 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 Sovereign and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or the Buyer encumbers or in any way charges any of the Goods.
6.6 Sovereign shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Sovereign.
6.7 The Buyer grants Sovereign, 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 Sovereign 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 Sovereign to the Buyer in the order in which they were invoiced to the Buyer.
6.9 On termination of the Contract, howsoever caused, Sovereign’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.
Unless otherwise agreed by Sovereign in writing, the price for the Goods shall be the price set out in the Contract. Such price shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
8.1 Subject to condition 8.4, payment of the price for the Goods is due in pounds Sterling on the terms specified in the Contract. Time for payment shall be of the essence. No payment shall be deemed to have been received until Sovereign has received cleared funds.
8.2 All payments payable to Sovereign under the Contract shall become due immediately on its termination despite any other provision.
8.3 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by Sovereign to the Buyer.
8.4 If the Buyer fails to pay Sovereign any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to Sovereign on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Lloyds TSB Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgment. Sovereign reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9.1 Sovereign warrants that (subject to the other provisions of these conditions) on delivery, and for a period of 12 months from the date of delivery, the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
9.2 Sovereign shall not be liable for a breach of the warranty in condition 9.1 unless:
9.2.1 the Buyer gives written notice of the defect to Sovereign, within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and
9.2.2 Sovereign is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by Sovereign) returns such Goods to Sovereign’s place of business for the examination to take place there.
9.3 Sovereign shall not be liable for a breach of the warranty in condition 9.1 if:
9.3.1 the Buyer makes any further use of such Goods after giving such notice; or
9.3.2 the defect arises because the Buyer failed to follow Sovereign’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
9.3.3 the Buyer alters or repairs such Goods without the written consent of Sovereign.
9.4 Subject to condition 9.2 and condition 9.3, if any of the Goods do not conform with the warranty in condition 9.1 Sovereign shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if Sovereign so requests, the Buyer shall return the Goods or the part of such Goods which is defective to Sovereign.
9.5 If Sovereign complies with condition 9.4 it shall have no further liability for a breach of the warranty in condition 9.1 in respect of such Goods.
10. LIMITATION OF LIABILITY
10.1 Subject to condition 4, condition 5 and condition 9, the following provisions set out the entire financial liability of Sovereign (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of any breach of these conditions, any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods, and 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 conditions excludes or limits the liability of Sovereign for death or personal injury caused by Sovereign’s negligence, or under section 2(3), Consumer Protection Act 1987, or for any matter which it would be illegal for Sovereign to exclude or attempt to exclude its liability, or for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.2 and condition 10.3:
10.4.1 Sovereign’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
10.4.2 Sovereign shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11. EXPORT TERMS
11.1 Where the Goods are supplied by way of export from the United Kingdom this condition 11 applies.
11.2 Unless otherwise agreed, the Goods are supplied by ex works Leeds.
11.3 The ‘Incoterms’ of the International Chamber of Commerce which are in force at the time when the Contract is made apply.
11.4 Where the Goods are to be sent by a route including sea transport Sovereign is under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
11.5 Sovereign is not liable for death or personal injury arising from the use of the Goods delivered in the territory of another State (within the meaning of s.26(3)(b) Unfair Contract Terms Act 1977).
11.6 The Buyer is responsible for arranging testing and inspection of the Goods at Sovereign’s premises before shipment (unless otherwise agreed). Sovereign is not liable for any defect in the Goods which would be apparent on inspection unless a claim is made before shipment. Sovereign is not liable for any damage during transit.
The Buyer may only cancel the Contract with the written consent of Sovereign and where a Contract is cancelled the Buyer shall pay Sovereign a cancellation charge commensurate with Sovereign’s cost of Contract up to the date of cancellation and Sovereign’s loss of profit.
Sovereign may assign the Contract or any part of it to any person, firm or company. The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of Sovereign.
14. FORCE MAJEURE
Sovereign 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 Sovereign including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, 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, provided that, if the event in question continues for a continuous period in excess of 120 days, the Buyer shall be entitled to give notice in writing to Sovereign to terminate the Contract.
15.1 Each right or remedy of Sovereign under the Contract is without prejudice to any other right or remedy of Sovereign whether under the Contract or not.
15.2 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 provision shall continue in full force and effect.
15.3 Failure or delay by Sovereign 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. Any waiver by Sovereign 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.
15.4 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.
15.5 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax to the registered office of the relevant party.
15.6 Communications shall be deemed to have been received if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting), or if delivered by hand, on the day of delivery, or if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
15.7 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts, save that Sovereign shall be entitled to bring proceedings against the Buyer in the courts of any jurisdiction in which the Buyer carries on it business