These terms and conditions (“Conditions”) apply to all orders placed by the Buyer for the supply of Goods by Linn. The placing of an order by the Buyer shall be deemed to be an unqualified acceptance of these Conditions which shall supersede all previous negotiations and representations (oral or written) and comprise the entire sale agreement between Linn and the Buyer (“the Contract”) except insofar as these Conditions are specifically varied, amended or extended by written agreement between Linn and the Buyer referring expressly to these Conditions. Such written agreement shall prevail in the event of any inconsistency or conflict with these Conditions. Any standard terms emanating from the Buyer are excluded and shall not form part of the Contract. No addition to or alteration of these Conditions shall have effect unless expressly agreed to by an authorised officer of Linn in writing and shall constitute an addition or alteration for the purposes of that particular contract only and shall be without prejudice to the remainder of these Conditions.
1.1 In these Conditions:
“Linn” means Linn Products Limited;
“the Buyer” means the person, firm or company seeking to purchase Goods from Linn;
“Goods” means the goods (including any instalment of the Goods or any parts or components for them) which Linn is to supply to the Buyer in accordance with these Conditions.
1.2 The headings to these Conditions are for convenience only and are to be otherwise ignored.
2. Quotations, Orders, Variations, etc
2.1 Any quotation given by Linn to the Buyer, whether directly by letter or other communication addressed to the Buyer or indirectly via brochures, sales material or otherwise, is only to be regarded as an invitation to treat and any order or other communication from the Buyer to Linn as a result thereof or with reference thereto is to be regarded as an offer which Linn shall be entitled to accept or reject as Linn in its absolute discretion chooses.
2.2 Without prejudice to the foregoing Condition 2.1 Linn’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by Linn in writing and the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
2.3 No order for Goods shall be binding on Linn until accepted in writing by Linn and Linn shall have no liability to the Buyer if Linn, for any reason, does not or cannot accept any orders for the Goods. Each order accepted by Linn in accordance with these Conditions shall constitute a separate contract for the sale of Goods. The entry by Linn into a contract for the sale of Goods shall not constitute or imply any obligation upon Linn to enter into any other or further contract for the sale of Goods.
2.4 No order and no variation of an order from the Buyer shall be binding on Linn unless and until such an order or variation shall have been accepted in writing by Linn.
2.5 All orders are subject to any minimum quantity requirements notified to the Buyer from time to time by Linn.
3. Price and Payment
3.1 The price of the Goods shall be the price intimated by Linn less applicable discounts (offered entirely at Linn’s discretion) at the date of acceptance by Linn of the Buyer’s order.
3.2 Such prices shall be exclusive of applicable VAT (or other relevant sales or purchase taxes) and shall include carriage, insurance and freight charges in respect of delivery of Goods to the destination agreed between the parties unless otherwise provided in Linn’s acceptance of the order.
3.3 Unless otherwise agreed by the parties in writing, delivery shall be made c.i.p. by Linn’s nominated carrier.
3.4 The Buyer shall be responsible for complying with all legislation and regulations governing the importation of the Goods into the country of destination and the payment of any customs or importation taxes, duties or levies arising therefrom.
3.5 The Buyer shall pay the price of the Goods in sterling in the UK within 7 days of the date of receipt of Linn’s invoice in respect of the Goods or, in the case of payments effected by direct debit, within 14 days from the Friday of the week in which the relevant invoice is received in respect of the Goods (notwithstanding that title to and property in the Goods may not have passed to the Buyer).
3.6 Payment for the Goods shall be made free of set off and without any deduction or deferment or withholding of sums in respect of any disputes or claims whatsoever and/or in respect of any taxes imposed by or under the authority of any government or public authority (provided the Goods have been delivered or are deemed to have been delivered under Condition 8.3).
3.7 Payment shall not have been made until the sums due have been credited to Linn’s account.
3.8 All bank charges arising out of payment of Linn’s invoices shall be met by the Buyer.
3.9 Time for payment shall be of the essence of the Contract.
3.10 Linn shall be entitled to sue for the price of the Goods and any additional sums due whether or not title and property in the Goods has passed to the Buyer under Condition 4 hereof.
3.11 Interest of 2.5% per month or per part month will be charged on overdue accounts.
3.12 Any default in any payment (without prejudice to any other rights or remedies Linn may have), shall entitle Linn to cancel the Contract or suspend deliveries under this or any other contract for as long as the default continues.
4.1 Notwithstanding delivery and the passing of risk (Condition 5.2), title to and property in the Goods supplied to the Buyer shall pass to the Buyer only on receipt by Linn in full of
4.1.1 the price and all other sums due for the Goods in question (including any interest due under Condition 3.11); and
4.1.2 all other sums due by the Buyer to Linn whatsoever.
4.2 Until Linn has received all such sums the Buyer shall hold such Goods in trust for Linn, keep them separate from any goods of the Buyer or any third party, properly stored, protected, insured and readily identifiable as the property of Linn and shall keep them in good condition.
4.3 The Buyer shall be entitled to sell Goods to third parties in the ordinary course of its business and on such sale title shall pass to the Buyer and thereafter to its customer but the proceeds of sale shall belong to Linn legally and beneficially and the Buyer shall hold such proceeds as trustee for Linn (in a separate bank account set up for such purpose) until full payment has been received by Linn for such Goods.
4.4 Until such time as property in any Goods passes to the Buyer Linn shall be entitled and is hereby irrevocably authorised at any time to inspect such Goods and/or to require the Buyer to deliver them up to Linn and, if the Buyer fails to do so, Linn or its agents may forthwith enter the Buyer’s premises and repossess them.
4.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness or grant or allow to arise any lien in respect of any Goods which remain the property of Linn but if the Buyer does so all monies owing to Linn shall become due and payable forthwith without prejudice to any right or remedy of Linn.
4.6 Each of Conditions 4.1, 4.2, 4.3, 4.4 and 4.5 is a separate condition and each is considered reasonable by the parties. Notwithstanding this, if a court of competent jurisdiction shall determine that any of these Conditions is void or unenforceable, the parties agree to delete or modify such Conditions as the court may see fit but without prejudice to the remaining provisions of this Condition 4.
5.1 All delivery periods quoted by Linn shall commence on acceptance of a written order but any such dates shall be approximate and for guidance only. Time is not of the essence in relation to delivery. Linn shall endeavour to comply with any delivery dates requested, agreed or quoted but failure to do so shall not give rise to any liability on Linn’s part for any loss (including loss of profit or other consequential or indirect loss), damage or expense suffered by the Buyer or by any third party nor shall it constitute breach or repudiation of the Contract nor give the Buyer any right to cancel the Contract.
5.2 All risk in the Goods and liability therefor shall pass to the Buyer upon delivery notwithstanding that property and title remains with Linn. “Delivery” shall be deemed to have been effected as follows:
(a) where Goods are to be collected by the Buyer (and this is provided in Linn’s acceptance of the relevant order), the earlier of the Goods being loaded onto the collection vehicle of the Buyer or his agent or 14 days having elapsed from Linn giving the Buyer notice that the Goods are available for collection; or
(b) in all cases where Goods are to be delivered c.i.p. by Linn when the Goods have been unloaded at the agreed point of delivery; or
(c) otherwise in accordance with any agreement in writing between Linn and the Buyer.
5.3 Linn shall be entitled to deliver the Goods by instalments. Each delivery shall constitute a separate contract and failure or delay by Linn to deliver any one or more of the instalments in accordance with the Contract or any claim by the Buyer in respect of any one or more instalment shall not entitle the Buyer to treat the Contract as a whole as repudiated.
5.4 The Buyer shall not be entitled to reject the Goods or part thereof by reason only of short delivery.
6. Force Majeure
6.1 Linn shall not be liable to the Buyer or any other party for any delay or failure to deliver Goods or for any other delay or failure caused by any circumstances beyond its reasonable control (including but not limited to any accident, act of God, severe weather conditions, war, strikes, civil disturbance, riot, lock-outs, industrial disputes, fire, flood, tempest, failure of Linn’s suppliers or subcontractors, delays in delivery of materials by Linn’s supplier(s), or any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental agency) and in such case Linn shall be released from any obligation to fulfil its obligations under the Contract for the period during which such circumstances subsist but without prejudice to Linn’s right to recover payment for Goods delivered or to fulfil the Contract at a later date. Linn may at its option cancel or suspend the Contract for any such cause without liability or may supply the Goods when the causes of delay or failure have passed and any delivery period shall be extended accordingly.
7. Warranties and Liability
7.1 All conditions and warranties whether express or implied by statute or otherwise, (including but not limited to those as to description, satisfactory quality or fitness for purpose of goods supplied by Linn) shall be construed subject to these Conditions and, insofar as they are inconsistent with these Conditions, shall be excluded to the maximum extent permitted by law.
7.2 Subject to the conditions set out in this Condition, Linn warrants to the Buyer that the Goods will at the time of delivery correspond in all material respects with any description, sample or specification(s) set out in Linn’s quotation or otherwise intimated by Linn to the Buyer in writing and will be free from defects due to faults in materials or workmanship either for a period of 12 months from the date of delivery to the Buyer or for the period from date of delivery until the Goods are sold on to a third party, whichever is shorter.
7.3 It shall be the sole responsibility of the Buyer to ensure that the Goods are fit for any purpose for which they are required and no warranty in this respect is given by Linn or should be implied.
7.4 If any Goods are damaged in terms of Condition 7.2 or defective or do not otherwise comply with the warranties in Condition 7.2 Linn will at its sole discretion either regulate, adjust, repair or replace such Goods or refund to the Buyer the price of the Goods within a reasonable time after they are returned to Linn (carriage paid by the Buyer). Any claim arising under Condition 7.2 must be notified by the Buyer in accordance with the time limits in Condition 8.2 and in the event that the Buyer fails to notify Linn accordingly it shall be deemed to have irrevocably waived all its rights and remedies which it might otherwise have had in respect of the Goods in question.
7.5 Linn shall be under no liability in respect of any defect in the Goods arising from fair wear and tear, from wilful damage, misuse, negligence or breach of duty on the part of the Buyer, its employees or agents or any other third party, and, without prejudice to the foregoing generality, from failure to follow written or oral instructions of Linn, from any specification supplied by the Buyer or from improper storage or handling or repair or alteration of the Goods after delivery or the installation thereof, from the absence of any product, component or accessory recommended by Linn or from any unauthorised alteration of the Goods, or the combining of incompatible goods with the Goods or from EMC or other interference caused by such combining of incompatible goods.
7.6 Save for death or personal injury arising from the negligence of Linn, its personnel or agents (but not independent contractors) while acting in the course of their employment, for which liability is not hereby excluded, Linn’s obligation to regulate, adjust, repair or replace Goods or refund the price under Condition 7.4 shall constitute the full extent of Linn’s liability in respect of any defective Goods and loss or damage sustained whether caused by breach of contract, breach of duty, misrepresentation or negligence on the part of Linn, its personnel or agents or arising from any cause whatsoever.
7.7 Subject to Condition 7.6 hereof, and notwithstanding anything herein contained, Linn shall not in any circumstances be under any liability to the Buyer in respect of breach of contract, misrepresentation, breach of duty, negligence or otherwise for any indirect, consequential, economic or special loss or damage including loss of business or customer relationships, loss of profit, loss of or prejudice to goodwill or other disadvantages including (without limitation) loss or damage on account of loss of prospective profits or anticipated sales or on account of expenditure, investment or other financial commitment and made in connection with the Contract suffered by the Buyer or any other person provided that if, for any reason, this exclusion is held to be unenforceable, Linn’s maximum liability in respect of any such loss or damage shall not exceed the purchase price of the relevant Goods.
7.8 Subject to Condition 7.6, save for death and personal injury and damage to or destruction of any non-commercial property (other than the Goods) with a value exceeding 500 Euros for which Linn is held liable in any competent court or tribunal as a “producer” within the meaning of Part 1 of the Consumer Protection Act 1987 for damage caused by a defect in the Goods or any other goods supplied by Linn, all liability of Linn in respect of such damage (including pain and suffering) shall be excluded.
7.9 The Buyer shall indemnify, defend and hold Linn, its directors and employees and agents harmless from and against all liability, damage, loss, cost or expense (including reasonable legal fees and costs) of any kind or nature whatsoever arising out of the Buyer’s breach of the Contract or any act or omission or negligence of the Buyer or its agents, contractors, employees, officers or directors and without prejudice to the foregoing generality in connection with the purchase, storage, transport, promotion, sale, installation, repair or distribution of any Goods. This Condition 7.9 shall survive the termination for whatever reason of the Contract.
8. Notification of Damage or Loss
8.1 The Buyer or his agent shall as soon as possible after Delivery inspect the Goods.
8.2 All claims by the Buyer based on any defect in or damage to the Goods and including any claims under Condition 7.2 must be notified (together with full details thereof) in writing to Linn and the carrier as soon as reasonably possible and not later than 3 days after delivery or, where such defect or damage was not apparent on reasonable inspection or such defect (but not damage) arises in the period after delivery, within 24 hours of discovering the same (all without prejudice to the expiry of the Warranty period under Condition 7.2).
8.3 All claims for non delivery of the whole or part of a consignment of Goods must be submitted in writing to Linn and the carrier within 7 days of receipt of any invoice or advice note concerning that consignment. In the absence of any timeously notified claim the Buyer shall be deemed to have received delivery and have accepted the Goods.
9.1 In the event that the Buyer:
9.1.1 becomes insolvent or makes any voluntary arrangement with its creditors or seeks protection from its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) has appointed to it a Receiver or Liquidator (other than for the purposes of reconstruction or amalgamation) or the equivalent thereof or anything analogous thereto in any relevant jurisdiction;
9.1.2 ceases or threatens to cease to carry on business or Linn reasonably apprehends that any of the events mentioned above is about to occur and notifies the Buyer accordingly;
9.1.3 fails to pay by the due date any sum due in respect of this Contract or any other contracts with Linn or is otherwise in material breach of such Contract or contracts; or
9.1.4 fails to provide when requested evidence satisfactory to Linn of the financial standing and creditworthiness of the Buyer; without prejudice to any other right or remedy, Linn shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without liability to the Buyer and if the Goods have been delivered and not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
9.2 Cancellation of any order after a Contract has been concluded but before delivery of the Goods in respect thereof shall render the Buyer liable for all expenses and losses incurred by Linn in connection with that Contract. Failure on the part of the Buyer to accept Goods on delivery thereof (unless the Buyer has timeously intimated valid grounds for rejection thereof) shall constitute cancellation of the Contract and the Buyer shall be liable to pay Linn a sum not exceeding the price of the relevant Goods ordered. The Buyer shall remain liable to pay the full price for any Goods which have been delivered in pursuance of any Contract.
10. Intellectual Property
10.1 All intellectual property rights in respect of the Goods remain vested in Linn or in any relevant party licensing Linn to use the same and nothing herein constitutes a grant of any rights to the Buyer under or in respect of such intellectual property rights.
10.2 The Buyer shall sell the Goods only under the relevant Linn trade marks and shall not make or permit to be made any alteration to the Goods, or the packaging, marking or labelling thereof or obscure, remove, conceal or otherwise interfere with the relevant Linn trade marks.
11. Legal Construction
11.1 The construction, validity and performance of this Contract shall be governed by the law of Scotland and all disputes, claims or proceedings between the parties shall be subject to the exclusive jurisdiction of the Court of Session, Edinburgh provided that Linn shall not thereby be prevented from raising proceedings against the Buyer in any other competent jurisdiction.
11.2 Termination of this Contract for any reason shall not affect the accrued rights of the parties arising in any way out of the Contract as at the date of termination.
11.3 No waiver by Linn of any breach of this Contract by the Buyer or of performance of any obligation of the Buyer under this Contract shall be considered a waiver of any subsequent breach or performance of the same or any other provision.
11.4 The Buyer shall not assign, transfer or in any other manner make over to any third party the benefit and/or burden of this Contract without the prior written consent of Linn.
11.5 The invalidity in whole or in part of any of these Conditions shall not affect the validity of any other provision. All clauses of these Conditions are severable.