| Terms of Payments
Payment is cash on delivery unless credit arrangements have been approved by Bailey Tanks Limited in writing.
If credit arrangements have been approved by Bailey Tanks Limited, payment is due on the 20th of the month following the date of the invoice.
If any amount due is not paid on the due date the Customer shall pay interest on that amount at the rate of five percent per annum above the current base lending rate of Bailey Tanks Limited’s bankers from the due date until the amount is actually paid, which interest rate shall apply before and after judgment being obtained by Bailey Tanks Limited against the Customer in respect of the amount owing. This provision is without prejudice to any of Bailey Tanks Limited’s other rights or remedies under these Conditions of Sale or at law.
Damage and Loss in Transit
Risk in the Goods shall pass to the Customer when the Goods are delivered to the Customer or into the custody of the Customer’s agent or servant.
If, on delivery, any of the Goods are found to be damaged, the Customer must NOT sign the carrier’s delivery docket or receipt of delivery unless the damage is noted on the carrier’s delivery docket or receipt of delivery AND the Customer must notify Bailey Tanks Limited in writing of the damage within three(3) working days of delivery of the Goods to the Customer. If the Customer provides the carrier with an unqualified delivery docket or receipt of delivery, or if the Customer has noted the damage or defects on the carrier’s delivery docket BUT fails to notify Bailey Tanks Limited of damage to or defects in the Goods within three(3) working days of delivery of the Goods to the Customer, the Customer shall be deemed to have received the Goods in good order and condition. Bailey Tanks Limited shall be under no liability whatsoever (whether in contract or in tort or otherwise) for delays in delivery or any loss or damage to the Goods in transit howsoever arising, unless the carrier has admitted liability and paid for the damage caused to the Goods. In any case, Bailey tanks Limited shall not be liable for failure to deliver or to perform the contract caused by any event beyond its control.
Purchase Money Security Interest
The Customer confirms and agrees that in consideration of Bailey Tanks Limited extending credit or continuing to extend credit on the Goods and any other goods supplied by Bailey Tanks Limited pursuant to this contract or other contracts (the continuation of such credit being in the sole discretion of Bailey Tanks Limited) and also to secure the performance and payment of any and all present and future obligations of the Customer to Bailey Tanks Limited, the Customer hereby grants, charges, transfers, assigns and conveys a purchase money security interest to Bailey Tanks Limited in and over the Goods and any other goods supplied by Bailey Tanks Limited pursuant to this contract or other contracts together with all proceeds derived directly from the disposal of the Goods and any other goods supplied by Bailey Tanks Limited pursuant to this contract or other contracts. The security interest created by this clause shall have priority over all other liens, encumbrances or security interests over the Goods and any other goods supplied by Bailey Tanks Limited pursuant to this contract or other contracts. For the avoidance of doubt, the collateral which is subject to the security interest created or provided for by this clause are all the Goods supplied by Bailey Tanks Limited to the Customer pursuant to this contract or other contracts that are owned by or in the possession of the Customer from the date of this contract and at anytime hereafter acquired by the Customer from Bailey Tanks Limited and includes all related accessories, all additions and accessions thereto, and substitutions and parts therefore, and all the proceeds derived from the sale thereof including trade-in machinery or equipment, cash, notes, chattel paper or goods. The Customer further confirms and agrees that the Customer will not exercise any right of set-off (whatsoever and howsoever arising) against Bailey Tanks Limited. Sections 114(1)(a), 133 and 134 of the Personal Property Securities Act 1999 shall not apply to this contract. The Customer waives all rights under sections 121, 125, 129, 131, 132 and 148 of the Personal Property Securities Act 1999.
Where the Goods are delivered to the Customer on consignment:
- the Goods shall remain the property of Bailey Tanks Limited and the Customer acts as agent of Bailey Tanks Limited in respect of the Goods;
- the Customer must not include the Goods as assets in the books and records of the Customer;
- Bailey Tanks Limited has the right to demand the return of the Goods at any time and to inspect the Goods and the premises in which the Goods are stored;
- the Customer must segregate the Goods from the Customer’s own goods;
- when the Goods are sold to a third party, the Customer must notify Bailey Tanks Limited of the sale and upon receipt of such notification, Bailey Tanks Limited will issue the Customer with an invoice for the Goods sold. Upon receipt of the invoice the Customer must remit the proceeds to Bailey Tanks Limited less the agreed costs and commissions of the Customer in respect of the Goods sold, and until the proceeds are remitted to Bailey Tanks Limited the Customer holds the proceeds of sale in trust for Bailey Tanks Limited. Payment must be made in full not later than the 20th of the month following invoice date.
- the Customer acknowledges that Bailey Tanks Limited has a security interest (within the meaning of section 17 (1)(b) of the Personal Property Securities Act 1999 in the Goods delivered on consignment.
Goods and Services Tax
Any prices and charges referred to in this contract and in any quotation which may have formed the basis of this contract are exclusive of Goods and Services Tax. The Customer shall pay Goods and Services Tax on the goods or services the subject of this contract and the amount of each payment payable under this contract shall be increased accordingly.
Warranties and Limitation of Liability
- Any condition, warranty or term which would normally be implied herein whether by statute or at common law or otherwise is hereby expressly excluded. Whilst any advice, recommendation, information, assistance or service (â€œCustomer Informationâ€) provided by Bailey Tanks Limited in relation to Goods is given in good faith and is believed to be appropriate and reliable, and such Customer Information provided and any statement or representation made by Bailey Tanks Limited in relation to any Goods supplied by Bailey Tanks Limited is provided or made without liability or responsibility on the part of Bailey Tanks Limited and this provision is intended to preclude any Court from inquiring into or determining the questions referred to in Section 4 of the Contractual Remedies Act 1979.
- It is the Customer’s responsibility to ensure and satisfy itself that the Goods and any method of use or application of the Goods are suitable for that Customer’s purposes and the risk of any damage loss or adverse consequences arising or resulting from the purchase or use of the Goods is voluntarily assumed by the Customer.
- If, on delivery, any of the Goods are found to have a manufacturing defect, the Customer must notify Bailey Tanks Limited in writing of the defect within three(3) working days of delivery of the Goods to the Customer. If the Customer fails to notify Bailey Tanks Limited of the defect in the Goods within three(3) working days of delivery of the Goods to the Customer, the Customer shall be deemed to have received the Goods in good order and condition. Subject to the Customer complying with the foregoing, in the event that any Goods are found by Bailey Tanks Limited upon inspection by it to have a manufacturing defect, Bailey Tanks Limited warrants to the Customer that, at Bailey Tanks Limited’s option, it shall supply the same quantity of the Goods in question as replacement for the defective Goods or refund to or credit the Customer with the purchase price of the defective Goods. Save as is expressly provided in this subclause, Bailey Tanks Limited shall not in any event whatsoever be responsible or liable to the Customer or any other person whether in contract, tort or otherwise for any loss, damage or expense howsoever caused and whether arising directly, indirectly, consequentially or otherwise from or in connection with the purchase or the use of the Goods.
- The Customer warrants that any design or instruction furnished to Bailey Tanks Limited will not be such as will cause Bailey Tanks Limited to infringe any patent, registered design or trademark in the execution of the Customer ‘s order.
- The Customer agrees to indemnify Bailey Tanks Limited against infringement or unauthorised use of patents, trademarks, designs or copyrights arising out of the manufacture and use of the Goods and it is specially agreed that the sale and purchase of the Goods does not confer on the Customer any licence or rights under any patents, trademarks, designs or copyrights the property of Bailey Tanks Limited.
Failure by Bailey Tanks Limited to insist in any one or more instances upon a strict performance of any one of the terms of this contract or the waiver by Bailey Tanks Limited of any terms or right hereunder or of any default by the Customer shall not be deemed or construed as a waiver of any such term or right of default in the future.
“Customer” means the customer whose name appears on the Application for Credit and Conditions of Sale.
“Goods” means the goods and/or services supplied by Bailey Tanks Limited to the Customer, including but not limited to water tanks, Intermediate Bulk Containers (IBCs), fittings and pumps, refurbishment of IBCs, other rotationally moulded goods.