1. Definitions and Interpretation
the person(s), firm or company whose order for the Goods is accepted by the Company;
any day other than a Saturday or Sunday or a public or bank holiday in England;
any contract between the Company and the Buyer for the sale and purchase of the Goods formed in accordance with paragraph 2;
any goods which the Company supplies to the Buyer (including any of them or any part of them) under a contract;
“Intellectual Property Rights”
all intellectual and industrial property rights including patents, know-how, registered trade marks; registered designs, utility models, applications for and rights to apply for any of the foregoing; unregistered design rights, unregistered trade marks, rights to prevent passing off for unfair competition and copyright, database rights, topography rights and any other rights in any invention, discovery or process, in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions;
in relation to the Goods, the technical specifications of those Goods, all preparatory, design and development materials which relate to the Goods, all information of any description which explains the structure, design and development materials which relate to the Goods, all information of any description which explains the structure, design, operation, functionality of the Goods, all information of any description which relates to the maintenance and/or support of the Goods;
“Terms and Conditions”
the standard terms and conditions of sale set out in this document together with any special terms; agreed in writing between the Buyer and the Company as specified on the front of the acknowledgement of order.
2.1. The Contract will be upon these Terms and Conditions to the exclusion of all other terms and conditions and all previous oral or written representations, including any terms or conditions which the Buyer purports to apply under any purchaser order, confirmation of order or similar document, whether or not such document is referred to in the Contract.
2.2. Each order or acceptance of a quotation for Goods will be deemed to be an offer by the Buyer to purchase Goods upon these Terms and Conditions. The Contract is formed when the order is accepted by the Company, by way of written acknowledgement of order. No contract will come into existence until a written acknowledgement of the order is issued by the Company. All orders must be on the Company’s standard order form.
2.3. Any quotation, including tenders, are valid for a period of 30 days only from its date provided the Company has not previously withdrawn it or has agreed otherwise. Any quotation may be altered at any time by the Company in the event of any currency fluctuations.
2.4. The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.5. Subject to paragraphs 7.3 and 11, the Buyer may not cancel the Contract. The Company may cancel the Contract at any time prior to delivery.
2.6. Save as set out in the Contract, these Terms and Conditions may only be varied or amended in writing and signed by a Director or General Manager of the Company.
3. The Goods
3.1. The quantity and description of the Goods shall, in all material respects, be as set out in the order confirmation form (which you acknowledge as being correct).
3.2. All samples, drawings, descriptive matter, specifications and advertising issued by the Company (or the manufacturer of the Goods) and any descriptions or illustrations contained in the Company’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Goods represented by or described in them. They will not form part of the Contract and this is not a sale by sample.
3.3. the Company may make any changes to the specification, design, materials or finishes of the Goods which:
3.3.1. are required to conform with any applicable safety or other statutory or regulatory requirements; or
3.3.2. do not materially affect their quality or performance.
4.1. The price for the Goods will be the price set out in the Company’s published price list current at the date specified in the order confirmation subject to paragraph 2.3 and is exclusive of:
4.1.1. any costs of carriage of the Goods, insurance; and
4.1.2. any value added tax or other applicable sales tax or duty which may be added to the sum in question, unless quoted otherwise.
4.2. The cost of any pallets and returnable packaging or containers will be paid for by the Buyer in addition to the price for the Goods.
4.3. The Company will be entitled to increase the price of the Goods following any changes in the Specification made both at the request of the Buyer and agreed by the Company or to cover any extra expense as a result of the Buyer’s instructions or lack of instructions, or to comply with the requirements referred to in paragraph 3.3.1.
5.1. The Company may invoice the Buyer for the Goods on or after delivery and subject to paragraph 5.5, payment is due in pounds sterling, unless otherwise specified in the order acknowledgement form.
5.2. Payment of the invoice will be made by the Buyer 30 days after the date of such invoice or otherwise as specified in the order acknowledgement form.
5.3. Where Goods are invoiced in one currency but payment is made in another, such payment will be converted into the currency on the invoice at the spot rate of exchange offered by Barclays Bank for that conversion on the date of receipt of such payment.
5.4. The Buyer will indemnify the Company against any shortfall between the amount invoiced and the amount received after such conversion (including any shortfall arising as a result of any bank charges, commission or like charges).
5.5. Time for payment will be of the essence.
5.6. No payment will be deemed to have been received until the Company has received cleared funds.
5.7. All sums payable to the Company under the Contract will become due immediately upon termination of the Contract.
5.8. All payments to be made by the Buyer under the Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless the Buyer is required by law to make any such deduction or withholding.
5.9. The Company may appropriate any payment made by the Buyer to the Company to such of the invoices for the Goods, as the Company thinks fit, despite any purported appropriation by the Buyer.
5.10. If the Buyer fails to make any payment due to the Company under the Contract by the due date for payment (due date) then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’s base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
6.1. The Company may deliver the Goods by separate instalments. Each separate instalment will be invoiced and paid for in accordance with the provisions of the Contract.
6.2. Each instalment will be a separate Contract and no cancellation or termination of any one Contract relating to an instalment will entitle the Buyer to repudiate or cancel any other Contract instalment.
7.1. Delivery of the Goods will be made ex-works as defined in INCOTERMS 2000, unless otherwise agreed in writing.
7.2. The Buyer shall not return any Goods to the Company unless the Company has agreed in writing to accept their return.
7.3. The Company will use reasonable endeavours to deliver each of the Buyer’s orders for the Goods within the time agreed when the Buyer placed an order and, if no time is agreed, then within a reasonable time, but the time of delivery will not be of the essence. If, despite those endeavours, the Company is unable for any reason to fulfil any delivery or performance on the specified date, the Company will be deemed not to be in a breach of this Contract, nor (for the avoidance of doubt) will the Company have any liability to the Buyer for 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 like loss) howsoever caused (including as a result of negligence) by any delay or failure in the delivery except as set out in this paragraph. Any delay in delivery will not entitle the Buyer to cancel the order unless and until the Buyer has given 30 working days, excluding any Company shut down periods, written notice to the Company requiring the delivery to be made and the Company has not fulfilled the delivery within that period. If the Buyer cancels the order in accordance with this paragraph 7.3 then:
7.3.1. the Company will refund to the Buyer any sums which the Buyer has paid to the Company in respect of that order (or part of the order) which has been cancelled; and
7.3.2. the Buyer will be under no liability to make any further payments under paragraph 5.1 in respect of that order or part of the order which has been cancelled.
7.4. If the Buyer fails to take delivery of any of the Goods when they are ready for delivery or to provide any instructions, documents, licences or authorisations required to enable the Goods to be delivered on time (except solely on account of the Company’s default), the Goods will be deemed to have been delivered on the due date and (without prejudice to its other rights) the Company may:
7.4.1. store or arrange for storage of the Goods until actual delivery or sale and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance); and/or
7.4.2. following written notice to the Buyer, sell any of the Goods at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract or account to the Buyer for any excess achieved over the price under the Contract, in both cases having taken into account any charges related to the sale.
7.5. The Company may deliver to the Buyer Goods up to 5% more or 5% less than the quantity ordered without any adjustment in the price, and the quantity delivered will be deemed to be the quantity ordered.
8.1. All Goods will remain the property of the Company until the price of any Goods supplied (at any time) to the Buyer by the Company have been paid in full (together with any other sums due under a Contract) but risk in the Goods will pass to the Buyer from the date of delivery.
8.2. Until ownership of the Goods has passed to the Buyer, the Buyer must:
8.2.1. hold the Goods on a fiduciary basis as the Company’s bailee; 8.2.2. 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;
8.2.3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
8.2.4. maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company, and will whenever requested by the Company, produce a copy of the policy of insurance.
8.2.5. notify the Company if it becomes subject to any of the circumstances set out in paragraph 11.1.1.
8.3. The Buyer may resell the Goods at full market value in the ordinary course of its business before ownership has passed to it, and the Buyer will account to the Company accordingly.
8.4. The Buyer’s right to possession of the Goods will terminate immediately if any of the circumstances set out in paragraph 11.1 occur.
8.5. The Company will be entitled to recover payment for the Goods notwithstanding that the title in any of the Goods has not passed from the Company.
8.6. 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.
8.7. If before title to the Goods passes to the Buyer, the Buyer becomes subject to any of the circumstances set out in paragraph 11.1, or the Company reasonably believes that any such circumstances are about to happen and notifies the Buyer accordingly, then provided the Goods have not been resold or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Buyer to deliver up the Goods and, if the Buyer fails to do so promptly, enter the premises of the Buyer or any third party where the Goods are stored in order to recover them.
8.8. 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 will 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.
8.9. On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this paragraph 8 will remain in effect.
9. Warranty, Exclusion of Liability and Indemnity
9.1. The Company will, free of charge, within a period of 12 months from the date of delivery of Goods which are proved to the reasonable satisfaction of the Company to be damaged (through no fault of the Buyer) or defective or do not comply with the Specification due to defects in material or workmanship or design unless specified otherwise in the contract and repair or, at its option, replace or repair such Goods. This obligation will not apply where:
9.1.1. the Goods have been improperly altered in any way whatsoever, or have been subject to misuse or unauthorised repair;
9.1.2. the Goods have been improperly installed or connected;
9.1.3. any maintenance requirements relating to the Goods have not been complied with;
9.1.4. any instructions as to storage of the Goods have not been complied with in all respects; or
9.1.5. the Buyer has failed to notify the Company of any defect or suspected defect within 14 days of the delivery where the defect should be apparent on reasonable inspection, or within 14 days of the same coming to the knowledge of the Buyer where the defect is not one which should be apparent on reasonable inspection, and in any event no later than 12 months form the date of delivery.
9.2. Any Goods which have been replaced will belong to the Company. Any repaired or replacement Goods will be liable to repair or replacement under the terms specified in paragraph 9.1 for the unexpired portion of the 12 month period from the original date of delivery of the replaced Goods.
Exclusion of Liability
9.3. In the event of any breach of the Company’s express obligations under paragraphs 7.3, 9.1, 9.2 and 9.3 above the remedies of the Buyer will be limited to damages.
9.4. The Company does not exclude its liability (if any) to the Buyer for:
9.4.1. breach of the Company’s obligations arising under section 12 Sale of Goods Act 1979;
9.4.2. personal injury or death resulting from the Company’s negligence;
9.4.3. defective products under the Consumer Protection Act 1987;
9.4.4. any matter which it would be illegal for the Company to exclude or to attempt to exclude its liability; or
9.4.5. fraud or fraudulent misrepresentation.
9.5. Except as provided in paragraphs 7.3 and 9.1 to 9.5, the Company will be under no liability to the Buyer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any damage, direct, indirect or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused or arising.
9.6. Except as set out in paragraphs 7.3 and 9.1 to 9.5, the Company hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Buyer.
9.7. The Company’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence) breach of statutory duty, or otherwise shall not exceed the price of the Goods.
9.8. Each of the Company’s employees, agents and sub- contractors may rely upon and enforce the exclusions and restrictions of liability in paragraph 7.3 and 9.4 to 9.7 in that person’s own name and for that person’s own benefit as if the words “its employees, agents and sub-contractors” followed by the word Company wherever it appears in those clauses save each reference in paragraph 9.6.1.
9.9. The Buyer acknowledges that the above provisions of this paragraph 9 are reasonable and reflected in the price which would be higher without those provisions, and the Buyer will accept such risk and/or insure accordingly.
9.10. The Buyer agrees to indemnify, keep indemnified and hold harmless the Company from and against all costs (including the costs of enforcement) expenses, liabilities (including any tax liability), injuries, 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 like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which the Company incurs or suffers as a consequence of a direct or indirect breach or negligent performance or failure in performance by the Buyer of the terms of the Contract.
10. Force Majeure
The Company will not be liable to the Buyer for any failure or delay or for the consequences of any failure or delay in performance of the Contract, if it is due to any event beyond the reasonable control and contemplation of the Company including, without limitation, acts of God, war, industrial disputes, protests, fire, tempest, explosion, an act of terrorism and national emergencies and the Company will be entitled to a reasonable extension of time for performing such obligations.
11.1. The Company may by notice in writing served on the Buyer terminate the Contract forthwith if the Buyer:
11.1.1. is in material breach (and a series of persistent minor breaches shall constitute a material breach) of any of the terms of the Contract and, where the breach is capable of remedy, the Buyer fails to remedy such breach within 30 days service of a written notice from the Company, specifying the breach and requiring it to be remedied provided any such notice is served within 60 days of the breach occurring or the Company becoming aware of such breach, whichever occurs later. Failure to pay any sums due in accordance with paragraph 5.1 is a material breach of the terms of the Contract which is not capable of remedy;
11.1.2. becomes bankrupt, insolvent, makes any composition with its creditors;
11.1.3. has any distraint, execution or other process levied or enforced on any of its property;
11.1.4. ceases to trade or appears in the reasonable opinion of the Company likely or is threatening to cease to trade;
11.1.5. has a change in its management and/or control as defined by the Income and Corporation Taxes Act 1988; or
11.1.6. the equivalent of any of the above occurs to the Buyer under the jurisdiction to which the Buyer is subject or the Company reasonably anticipates that one of the above set of circumstances is about to occur.
11.2. The termination of the Contract howsoever arising is without prejudice to the rights, duties and liabilities of either the Buyer or the Company accrued prior to termination.
11.3. The Company will be entitled to suspend any deliveries otherwise due to occur following service of a notice specifying a breach under paragraph 11.1.1, until either the breach is remedied or the Contract terminates, whichever occurs first.
12. Data Protection
This clause only applies to Buyer who operate as sole traders or in partnerships.
12.1. The Company may transfer information about the Buyer to the Company’s bankers in order for them to provide their services to the Company and other customers of theirs and to help them to (a) obtain credit insurance (b) undertake credit control (c) undertake assessment and analysis (including credit scoring, market, product and statistical analysis (d) securitise debts and (e) protect the interest.
12.2. The Company’s bankers may make credit reference agency searches in respect of the Buyer’s business and its principals. Credit reference agencies make a record of such searches which may be used to prevent fraud or money laundering or by other subscribers to make credit decisions.
12.3. The Company may give information about the Buyer and its indebtedness to the following for the purposes stated:
12.3.1. any other divisions or associated companies of their for the business purposes of such divisions or companies;
12.3.2. The Company’s or its bankers insurers – to quote for and issue any credit policy or to deal with any claims;
12.3.3. any advisers acting on behalf of the Company or its Bankers – so the advisers can carry out their services;
12.3.4. any business to whom the Buyers indebtedness or its financing arrangements with them may be transferred – to facilitate such transfer;
12.3.5. to any person to whom they have a duty of disclosure or to whom the law permits disclosure.
12.4. The Company’s bankers may make decisions about the Buyer solely using an automated decision making process, such as credit scoring; however, they will tell us (and in turn we will tell you) if they make a significant decision only using such a process. Through us you can request a review of their decision using other means.
12.5. The Company’s bankers may monitor and/or record the Buyer’s phone calls to them for training and/or security purposes.
13. Intellectual Property
13.1. No right or licence is granted to the Buyer in respect of the Intellectual Property Rights of the Company, except the right to use, or re-sell the Goods in the Buyer’s ordinary course of business.
13.2. The Buyer will not, without the Company’s prior consent, allow any trade marks of the Company or other words or marks applied to the Goods to be obliterated, obscured or omitted nor add any additional marks or words.
14.1. Time for performance of all obligations of the Buyer under the Contract is of the essence.
14.2. Time for performance of all obligations of the Company under the Contract is not of the essence.
14.3. Each right or remedy of the Company under any Contract is without prejudice to any other right or remedy of the company under this or any other Contract.
14.4. If any paragraph or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Contract and will be ineffective without, as far as possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect.
14.5. No failure or delay by the Company to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
14.6. The Company may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under the Contract.
14.7. The Contract is personal to the Buyer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without the Company’s prior written consent.
14.8. Save as set out in paragraph 9.8, the parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties ) Act 1999 by any person not a party to it.
14.9. The Contract and the order confirmation form contains all the terms which the Company and the Buyer have agreed in relation to the Goods and (subject to paragraph 9.4.5) supersedes any prior written or oral agreements, representations, or understanding, between the parties relating to such Goods. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract Specification.
14.10. Any notice in connection with the Contract will be in writing to the other party at its registered office, or principal place of business and will be delivered by hand, or first class or special delivery post. The notice will be deemed to have been duly served, if delivered by hand, when left at the proper address for service or if made by pre-paid, first class post or special delivery post, 48 hours after being posted.
15.1. the formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any term of the Contract will be governed by English law. The English Courts will have non exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Contract. The parties agree to submit to that jurisdiction.
16. Consumer Rights
16.1. If the Buyer contracts as a consumer via the Company’s website or by telephone, the Buyer may cancel the Contract at any time within seven working days, beginning on the day after the Buyer received the Goods. In this case, the Buyer will receive a full refund of the price paid for the Goods within 30 days.
16.2. To cancel the Contract the Buyer must inform the Company in writing. The Buyer must also return the Goods to the Company immediately, in the same condition in which the Buyer received them, and at the Buyer’s own cost and risk. The Buyer has a legal obligation to take reasonable care of the Goods while they are in the Buyer’s possession. If the Buyer fails to comply with this obligation, the Company may have a right of action against the Buyer for compensation.