This clause sets out the meaning of terms which are given specific meaning within this document.
2. The Basis of Our Agreement: This clause explains the extent to which this document applies to dealings between you and us and how
we intend to rely on it. This clause also explains when a contract is formed between you and us, the status of any quotations which we
may provide to you and the extent to which you may rely on any advice provided by us.
3. The Description and Price of the Goods: This clause sets out how the goods we supply to you will be described and priced and our
obligations to you to ensure that descriptions and prices are accurate. The clause explains our obligations to supply goods to you and your
rights if we are unable to do so or if variations arise in the finish of products supplied.
4. Payment for the Goods: This clause explains when and how you can pay for goods which you order from us and the steps we may take
if you are late paying.
5. Our Delivery of the Goods: This clause sets out the procedure and cost in the event that we agree to deliver goods to you. It also sets
out our liability to you where you ask us to enter private property and the circumstances in which we may refuse to do so.
6. Your Cancellation and Return of the Goods: This clause explains when you may cancel an order which you have placed with us and
when you may return goods which we have supplied to you. It also explains your rights where you have purchased goods “at a distance”
(by telephone, mail order or by the internet) or “off-premises”.
7. Your Acceptance of the Goods: This clause sets out three ways in which you will be deemed to have accepted goods supplied by us to
8. Your Responsibilities on Delivery including Inspection: This clause sets out what you should do in the event that you are not satisfied
with goods which we supply to you or if we deliver a smaller quantity of the goods than was agreed between you and us.
9. Defective Goods: This clause sets out our liability to you in the event that we supply you with goods which are defective and the
circumstances when we will not be liable. It also explains whether you will need to prove that the goods were defective or if we will need
to show that they satisfactory.
10. Ownership and Responsibility for the Goods: This clause explains when you will become responsible for the goods and when
ownership will pass. It explains that ownership will not pass until you have paid for the goods and any other sums owing to us in full.
11. Your Non-Payment / Insolvency: This clause explains the consequences of you failing to pay us for goods on time and the steps we
may take if you are declared bankrupt or become insolvent.
12. Data Protection: This clause sets out how we may make use of your personal details in order to fulfil your order.
13. Events Beyond Our Control: This clause explains the extent of our liability in the event that we are unable to complete the
contract between us due to circumstances which are beyond our reasonable control.
14. General: This clause contains a number of general provisions in relation to the contract between you and us including which law will
apply, the way in which the contract should be interpreted and the rights of third parties in relation to the contract between you and us.
THESE TERMS ONLY APPLY IF YOU ARE A CONSUMER. A CONSUMER MEANS ANY NATURAL PERSON ACTING FOR PURPOSES OUTSIDE HIS
TRADE BUSINESS OR PROFESSION. IF YOU ARE ACTING IN THE COURSE OF YOUR TRADE BUSINESS OR PROFESSION PLEASE ASK FOR A
COPY OF OUR BUSINESS TO BUSINESS TERMS OF SALE.
THIS IS A LEGALLY BINDING DOCUMENT TO PROTECT YOUR OWN INTERESTS PLEASE READ THESE TERMS OF SALE CAREFULLY BEFORE
PLACING YOUR ORDER AND KEEP A COPY OF THESE TERMS AND YOUR ORDER FOR FUTURE REFERENCE
In these sale Terms: ‘We,’ ‘we’, ‘Our,’ ‘our’,- means the company whose details are set out at the end of these Terms as well as its employees and agents; ‘You’, ’you’, ‘Your’ and ‘your’ means you the person seeking to purchase Goods from us;
‘the Contract’ - means the contract for the supply of Goods incorporating these Terms;
‘Defect’ - means the condition and/or attribute of the Goods and/or any damage, fault, condition or other circumstances that may entitle you to either reject the Goods, or seek Remedies;
‘the Goods’ means the Goods to be supplied by us;
‘Quotation’ - means our written indication of likely cost and specification of the Goods if You were to place an order with Us;
‘Remedies’ - means compensation (the sum required to put the breach right), repair or replacement, a reduction in price of the defective Goods or ending of the contract; and
‘the Terms’ - means these terms and any special terms agreed in writing between you and us.
2. The Basis of Our Agreement
2.1 These Terms apply to all Goods supplied by us. Orders are only accepted under these Terms and they may not be altered or added to
without our written agreement.
2.2 In relation to the Contract We intend to rely upon these Terms along with any written acceptance of an order placed by you as to the
terms of the agreement between us. If you require any changes to these Terms, these must be put in writing and be signed by one of Our
2.3 An agreement between you and us for the sale of any Goods only exists after we have received and accepted your order and have confirmed it in writing such as by invoice, receipt, delivery note or by email to an email address you have given. Once we do so, there is a binding legal contract between us.
2.4 Our Quotations do not constitute an offer to enter into a contract with you.
2.5 We may change these Terms without notice to you in relation to future sales.
2.6 In providing any advice to you with regard to the suitability of any Goods or materials for your specifications we shall rely upon the information that you provide to us. You must ensure the accuracy of any information you provide to us including any applicable design, drawing or specification and you must give us any necessary information relating to the Goods within sufficient time to enable us to perform the contract in accordance with these Terms.
3. The Description and Price of the Goods
3.1 The description and price of the Goods you order will be as shown, or as described by us in any Quotation, or, in the absence of such, as shown in our, or the manufacturer’s / supplier’s, current catalogue or website at the time you place your order. We reserve the right to vary the price of the Goods at any time before the Contract is made. Whilst we try to ensure that all descriptions and prices are accurate and are kept up to date, errors may occur. If we discover an error in the price or description of the Goods you have ordered, we will let you know as soon as reasonably possible. We will then offer You the option of reconfirming your order or cancelling it in exchange for a full refund.
3.2 Our ability to supply the Goods is subject to us holding them in stock or being able to obtain them. If on receipt of your order, the Goods you have ordered are not available either in stock or by special order we will inform you as soon as reasonably possible and if we are unable to obtain them in an agreed time we will refund or credit you for any sum that has been paid by you or debited from your credit card for the Goods.
3.3 In the event that we are unable to supply the Goods to you for a reason beyond our reasonable control, we will notify you and offer you alternative similar products (if available) which are of no less quality. You shall be entitled to accept the alternative goods offered with a refund of any difference in the price if the substitute is cheaper or you shall be entitled to cancel your order and obtain a full refund.
3.4 Whilst we try to maintain continuity of supply in relation to our product lines, we reserve the right to discontinue any product at any time and we shall be under no obligation to supply you with a discontinued product in the future. If you have already placed your order, we will notify you as soon as reasonably possible that the Goods are not available and offer you an alternative product if one is available or a full refund.
3.5 In the case of certain products, variations may arise in the finish of those products where they originate from different factory batches. We shall not be liable for any loss caused by such variation where such variation does not diminish the quality of the Goods and where Goods bought for a specific job or purpose are not purchased at the same time.
3.6 We take every precaution in the preparation of our catalogues, technical circulars, price lists and other literature, but these documents are for your general guidance only and do not form part of the Contract (in the absence of fraud on our part). If you require advice in relation to the Goods, a specific request for advice should be made.
3.7 We reserve the right to increase the price of the Goods by giving notice to you prior to delivery to cover:
3.7.1 any increase in the cost which is due to any factor beyond our control including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increases in the costs of labour, materials, or other costs of manufacture;
3.7.2 any change in delivery dates, quantities or specification of the Goods which are requested by you;
3.7.3 any delay caused by any failure by you to give us adequate information or instructions, but if you do not wish to pay the higher price, you may cancel your order and claim a full refund.
3.8 Where you require delivery to be made, we may require you to pay a charge for the delivery of the Goods in addition to the price and, if applicable, this charge will be quoted to you at the time of contract.
3.9 The price of the Goods and delivery charges are inclusive of VAT unless VAT is shown as a separate element.
3.10 Prices and delivery charges displayed or otherwise communicated are valid and effective only in the United Kingdom.
4. Payment for the Goods
4.1 You can pay for the Goods and delivery charges by any method shown in our premises, in our current catalogues or on our website or which are notified to you at the time you place your order.
4.2 You must pay for the Goods at the time you place your order unless you hold an account with us or other credit terms which have been previously agreed in writing. If you fail to pay for the Goods on the date on which payment is due, we reserve the right to charge you interest on the amount unpaid at the rate of four per cent. per annum above Barclay’s Bank Plc’s prevailing base lending rate from time to time, until payment is made.
4.3 Payment by credit card will not be effective until we are in receipt of cleared funds.
4.4 If you have an account with us then payment is due on the last day of the month following the month in which the Goods are delivered.
4.5 If there are minor faults in the Goods and you claim a reduction in the price, you (as an account holder) will not withhold more than a reasonably proportionate amount of the payment of any invoice or other amount due to us. If you withhold more than a reasonably proportionate amount we reserve the right to apply interest to the outstanding balance at the rate of four per cent. per annum above Barclay’s Bank Plc’s prevailing base lending rate from time to time, until the balance is paid.
4.6 If for any reason you owe us any money we may deduct these sums in calculating any amount which we may owe you.
4.7 In the event of any debt or claim that we have against you, we will not withhold more than a reasonably proportionate amount of any sums due from us to you. If we withhold more than a reasonably proportionate amount, you may apply interest to the outstanding balance at the rate of four per cent. per annum above Barclay’s Bank Plc’s prevailing base lending rate from time to time, until the balance is paid.
5. Our Delivery of the Goods
5.1 Before we agree to deliver the Goods to you, you must provide us with an address for delivery along with all of the information which we will reasonably require to enable us to determine whether we will be able to deliver the Goods, the appropriate method of delivery and the cost to you of providing the delivery service.
5.2 Prior to delivery of the Goods, we will agree with you a time for delivery of the Goods.
5.3 If we are unable to make an agreed delivery to your address for reasons due to our own fault, we will inform you as soon as possible and refund or re-credit you for any sum that has been paid by you or debited from your credit card for delivery.
5.4 If there is no one at the address you have given who is competent (over the age of 18 years) to accept delivery of the Goods by signing for them, we will seek to agree an alternative delivery date, or agree for you to collect the Goods. We reserve the right to make an additional charge for re-delivery of the Goods and you will be informed of the amount at the time we arrange an alternative date.
5.5 If Goods are to be deposited other than on your private premises we will deliver the Goods as near as possible to the delivery address as is safe and the public highway permits. You will be responsible for complying with all regulations, permits and charges and for all steps which need to be taken for the protection at all times of persons or property. You will reimburse us in respect of all reasonable losses, damages, costs and expenses we may incur as a result of such delivery whether on the public highway or elsewhere. We will remain liable for all losses caused by Our own negligence.
5.6 We will only enter private property if we are given specific authority. Once invited onto private property we accept no liability for damage caused to that property by our delivery drivers (whether directly employed by us or by a third party) unless caused by Our own negligence. We reserve the right to refuse to deliver the Goods to premises that are considered by our delivery drivers to be unsuitable or unsafe. We will notify You as soon as reasonably possible of the reason for non-delivery.
5.7 You agree to reimburse us in respect of all losses, damages, costs and expenses that we incur in complying with any specific delivery instructions which you may give us and which relate to clauses 5.6 and 5.7 above. Any amount which you reimburse to us will be reduced in proportion to the extent that such losses, damages, costs and expenses are due to our negligence
5.8 Unless we state otherwise, all our quotations and estimates assume delivery of the full contracted amount of Goods. We reserve the right to levy additional charges for deliveries by instalments where requested by you.
5.9 Our delivery price includes the cost of delivery on week days during our normal working hours. An additional charge may be made if we agree to your request to deliver outside normal working hours or on Saturdays, Sundays and/or bank holidays.
5.10 If you keep our delivery vehicle waiting for an unreasonable time or the delivery driver is obliged to return without completing delivery, or if due to the nature of the Goods we have to provide additional staff to unload Goods, a reasonable additional charge will be made that reflects the extra services provided.
5.11 We will not be liable for any death, or personal injury to you or anyone under your control during unloading that was not caused by our negligence or by a breach of our statutory duty.
6. Your Cancellation and Return of the Goods
6.1 You do not have an automatic right to change your mind and cancel the Contract unless it has been made off-premises or at a distance by telephone, mail order or by the internet (“Distance”). The Contract will be off-premises if one of the following is true:
6.1.1 it is concluded in the simultaneous physical presence of you and us in a place which is not our business premises;
6.1.2 an offer was made by you in the simultaneous physical presence of us and you in a place which is not our business premises
6.1.3 it is concluded on our business premises or through any means of distance communication immediately after you were personally and individually addressed in a place which is not our business premises
6.1.4 it is concluded during an excursion organised by us with the aim or effect of promoting and selling goods or services to you,
(“Off-Premises”). We may at our discretion accept the return of certain Goods not purchased from us at a Distance or Off-Premises (see clause 6.2). This clause does not affect your right to return any faulty or mis-described Goods.
6.2 If the Contract is not made at a Distance or Off-Premises and where you purchase Goods from us from stock, we may at our discretion accept the Goods back, in which case we will issue you with a credit note for the purchase price less reasonable costs incurred. Goods to be returned must be delivered back to us at your cost with proof of purchase and be in the same condition that they were in at the time of purchase. We will be unable to accept back Goods that were not held in stock and were especially ordered on your behalf. This clause does not affect your right to return faulty or mis-described Goods.
6.3 If you cancel the Contract when it has not been made at a Distance or Off-Premises and we have not agreed to take back the Goods you will be liable for reasonable costs that we have incurred. If we have already accepted a part-payment or deposit, we will consider whether this covers the losses we are entitled to claim and if it does not we may claim extra from you. If the part-payment or deposit is in excess of our losses, we will refund the balance. This clause does not affect your right to return faulty or mis-described Goods.
Goods ordered at a Distance
6.4 If you have ordered Goods at a Distance or Off-Premises you have the right to cancel the Contract at any time up to the end of fourteen days from the day on which you acquire, (or a third party nominated by you) acquires, physical possession of the Goods. If the Contract relates to multiple Goods ordered by you in one order and delivered separately, you will have the right to cancel the Contract at any time up to the end of fourteen days from the day on which you acquire (or a third party nominated by you) acquires, physical possession of the last of the Goods.
6.5 To exercise your right of cancellation, you must give us a clear statement setting out your decision to cancel or using the model cancellation form set out as an attachment to these terms by hand, post, fax or email, at the address, fax number or email address shown at the end of these Terms. To meet the cancellation deadline, please send your communication concerning your exercise of the right to cancel before the cancellation period has expired.
6.6 If you cancel this Contract, we will reimburse to you all payments received from you, including the costs of delivery (except for the supplementary costs arising if you chose a type of delivery other than the least expensive type of standard delivery offered by us).
6.7 We may make a deduction from the reimbursement for loss in value of any Goods supplied, if the loss is the result of unnecessary handling by you.
6.8 We will make the reimbursement without undue delay, and not later than:
6.8.1 14 days after the day we receive back from you any Goods supplied, or
6.8.2 (if earlier) 14 days after the day you provide evidence that you have returned the Goods,
6.8.3 if there were no Goods supplied, 14 days after the day on which we are informed about your decision to cancel this Contract.
6.9 We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement.
6.10 You shall send back the Goods or hand them over to us at the below address without undue delay and in any event not later than 14 days from the day on which you communicate your cancellation from this Contract to us. The deadline is met if you send back the Goods before the period of 14 days has expired.
6.11 You will have to bear the direct cost of returning the Goods. If this Contract is a Distance or Off-Premises contract and if the Goods, by their nature, cannot be returned by post, we will collect the Goods at our own expense and you are only liable for any diminished value of the Goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the Goods.
6.11 You do not have the right to cancel the Contract if your order is for perishable Goods that have been unsealed by you, or for Goods that by their nature (such as bespoke goods or items which have been personalised at your request) cannot be returned or are liable to deteriorate or expire rapidly.
7. Your Acceptance of the Goods
7.1 Your acceptance of Goods can take place in three ways:
7.1.1 by telling us that you have accepted the Goods;
7.1.2 by altering or customising the Goods in any way; or
7.1.3 by keeping the Goods longer than a reasonable time without telling us that you have rejected them.
8. Your Responsibilities on Delivery including Inspection
8.1 Goods must confirm with your order. If you are not satisfied with the Goods, if they do not conform with your order, if they are damaged or faulty, if they are not of satisfactory quality or are otherwise defective you should reject them on delivery, or, if a defect is found within a reasonable time after delivery we will (subject to confirmation of the defect) exchange the Goods or refund you in full.
8.2 Should a short delivery (of less than the full quantity of Goods ordered) have been made, you must notify us within a reasonable time of discovery of the short delivery. Our liability for this short delivery is limited to making good the shortage and any reasonable loss or damages you have suffered due to the short delivery.
8.3 Where it would have been apparent on a reasonable inspection that the Goods do not conform to the Contract and you fail to give us notice of this within a reasonable time you will be deemed to have accepted the Goods and have waived any right to reject the Goods. This does not limit your rights if the contract is a Distance Contract or Off-premises (see clause 6)
9. Defective Goods
9.1 If the Goods have a defect at the time of sale and you have not yet accepted the Goods, we will refund you in full. Where you have accepted the Goods, you lose the right to a refund. However you retain the right to the Remedies.
9.2 If the Goods have a defect and you have accepted them, you will be entitled to Remedies. We will not pay compensation for any consequential damage (including but not being limited to loss of profit, loss of income, loss of business, loss of revenue, loss of goodwill or any other indirect or consequential loss of any kind) resulting from use of the defective Goods, where such damage was not reasonably foreseeable to us at the time the Contract was made or where such losses can be reasonably described as arising in the course of your trade or business.
9.3 If you do not accept the Goods you may claim a full refund or Remedies only if the Goods are not (a) of a satisfactory quality or (b) fit for purpose or (c) as described at the time of purchase.
9.4 You may claim Remedies within the first six months after purchase unless we prove that the Goods conformed to the Contract at the time of sale.
9.5 If you claim Remedies more than six months after purchase you must prove that the Goods did not conform to the Contract at the time of sale.
9.6 You cannot make a claim for Remedies in the following cases:
9.6.1 if the defect or fault was brought to your attention on or before the time of sale;
9.6.2 if you inspected the Goods on or before the time of sale and the defect or fault was or should have been readily noticeable;
9.6.3 if the defect or fault would have become apparent on inspection within a reasonable time from delivery and notice of the defect has not been given to us within a reasonable time from when the defect became apparent;
9.6.4 if the defect arises from your wilful actions, negligence, abnormal working conditions, misuse, alteration or repair of the Goods, failure to follow instructions relevant to the Goods or storage of the Goods in unsuitable conditions;
9.6.5 if you change your mind about wanting the Goods or if after purchase you decide that you do not like a cosmetic aspect of the Goods such as colour or shape that was clearly intrinsic to the Goods at the time of purchase;
9.6.6 if you chose the Goods yourself for a purpose which was neither obvious nor made known to us and you find the item unsuitable for that purpose; or
9.6.7 if the defect is a result of fair wear and tear.
9.7 Nothing in these Terms will affect the terms of manufacturers’ warranties and guaranties or reduce your statutory rights relating to faulty or mis-described Goods. For further information about your statutory rights you can contact your local authority Trading Standards Department or Citizens’ Advice Bureau.
10. Ownership and Responsibility for the Goods
10.1 Risk passes to you as soon as we have delivered the Goods and you will then be responsible for them. If you delay a delivery, our responsibility for everything other than damage due to our negligence will end on the date that we agreed to deliver them as set out by the Contract.
10.2 We will retain title (ownership) to the Goods until you pay the full price (cash or cleared funds) of the Goods and any other sums outstanding between you and us whether in respect of this Contract or otherwise.
10.3 Until title passes you shall:
10.3.1 hold the Goods on trust on our behalf;
10.3.2 store the Goods separately from all other Goods or products in such a way that they remain identifiable as the Goods; and
10.3.3 not affix the Goods to any land or building in such a way that they become incapable of removal without material injury to the land or building.
11. Your Non-Payment / Insolvency:
11.1 If you are declared bankrupt, enter into an Individual Voluntary Arrangement with your creditors, fail to pay any invoice or any sum due to us under any contract or you commit a material breach of the Contract and fail to remedy that breach, all sums outstanding between you and us shall become immediately due and payable and we shall be entitled to do any one or more of the following (without prejudice to any other right or remedy we may have):
11.1.1 require payment in cleared funds in advance of any further orders you may make;
11.1.2 cancel or suspend any further deliveries to you under this or any other contract without liability on our part to the extent that we have not already received payment in cleared funds;
11.1.3 claim interest and compensation on the sums outstanding from the due date until payment is received in accordance with clause 4.2 above;
11.1.4 terminate this or any other contract with you without liability on our part, provided that we shall complete orders on which you have made payment in full.
11.2 You will reimburse our costs including legal costs, which we incur in enforcing a breach of the Contract arising from your act or omission.
12. Data Protection
By placing your order, you allow us to use your personal details for the purpose of supplying the Goods (including passing your details on to our employees/agents). We may share your information within our company network for purposes connected to or relating to the fulfilment of your order or for other internal accounting or compliance purposes. We will not use your details
for any other purpose without seeking your prior consent.
13. Events Beyond Our Control
We reserve the right to defer the date of delivery or to cancel the Contract or, with your consent (not to be unreasonably withheld or delayed), reduce the volume of Goods ordered by you (without liability to you) if we are prevented from or delayed in the carrying on of our business due to circumstances beyond our reasonable control, provided that, if the event in question continues for a continuous period in excess of 30 days, you shall be entitled to terminate the Contract by giving 14 days prior written notice and you shall be entitled to a refund in respect of any Goods not delivered to you.
14.1.1 if you live in England or Wales then English law will apply and the English courts will have non-exclusive jurisdiction in the case of any dispute;
14.1.2 if you live in Scotland then Scots law will apply and the Scottish courts will have nonexclusive jurisdiction in the case of any dispute.
14.2 Any waiver by us of any breach or default of these Terms does not mean that we will continue to waive that or any subsequent breach.
14.3 If any clause of sub-clause of these Terms is held to be invalid or unenforceable the validity of the other clauses and sub-clauses of these Terms will not be affected and they will remain in full force and effect.
14.4 Any reference in these Terms to any Statute, Statutory Provision or Regulation includes a reference to that Statute, Statutory Provision or Regulation as amended extended or re-enacted at the relevant time.
14.5 The headings of these Terms are for convenience only and shall not affect their interpretation.
14.6 Termination of the Contract shall not affect the rights and obligations that have already accrued at the time of termination.
14.7 Nothing in these Terms or the Contract is intended to or will create any benefit for or right to enforce any of the Terms of the Contract to any third party.
TERMS AND CONDITIONS OF SALE GRAFTON MERCHANTING GB LIMITED - THESE TERMS & CONDITIONS RELATE TO TRADE SALES ONLY AND NOT CONSUMER SALES
In these Conditions “the Company” means Grafton Merchanting GB Limited (No.4725313) including its trading divisions; “these Conditions” means these terms and conditions; “the Customer” means the person, firm or company purchasing the Goods; “the Contract” means the contract for the sale of the Goods made between the Company and the Customer, “the Goods” means the goods, materials or services (including samples, where relevant) which are the subject of the Contract and a “Consumer” means a person who is buying the Goods other than in the course of a business. The statutory rights of a Customer who is a Consumer are not affected by these Conditions.
1. The Contract/Order Acceptance
(a) These Conditions shall apply to the Contract and all orders placed and accepted by the Company to the exclusion of any other terms and conditions stipulated, incorporated or referred to by the Customer in any order, letter, form of contract or any other document or negotiations. (b) No variation to these Conditions shall be binding without the express written agreement of a director of the Company. (c) Even if the Company has given a quotation, no order placed by the Customer is binding on the Company until it has been accepted by the Company. (d) In placing an order with the Company the Customer and its representatives warrant and represent that each of them has the necessary authority to bind the Customer in contract. The Customer must ensure that the terms of its order and any applicable specification are complete and accurate given the Company shall be relying on that information.
(a) The Customer is entirely responsible for ascertaining the quantities required notwithstanding that an estimate may have been given by the Company. (b) Quotations are for the supply of Goods on these Conditions only. Any quotation given by the Company is not an offer and the Company reserves the right to withdraw or amend any quotation at any time before the Company’s acceptance of the Customer’s order. (c) Where fine or specific tolerances are required in Goods beyond those generally accepted in the building trade no liability will attach to the Company unless the tolerances are notified in writing to the Company at the time of order and the Company has agreed in writing to supply Goods that meet those tolerances. (d) The Company may without notice to the Customer reasonably alter any specification, description, design, drawing, illustration and/or other particulars relating to the Goods and to supply the Goods as so altered in performance of the Contract and may also substitute and supply similar goods of equivalent type in the performance of the Contract.
(a) If the Customer incorrectly orders any Goods the Company may, in its sole discretion, determine whether or not to accept their return. The acceptance by the Company of returned Goods shall be on such terms as it may determine and in particular the Company may charge for the carriage and handling of such Goods at the greater of 25% of their invoiced value or £5. (b) An order for Goods that are to be specially made or obtained (“Specials”) may not be cancelled by the Customer once the order has been accepted by the Company nor will any allowance be made in respect of Specials if they are subsequently returned.
(a) The price of the Goods (“the Price”) shall be the price quoted by the Company to the Customer provided the Customer accepts the quotation within 30 days of its date. Where no price has been quoted (or a quoted price is no longer valid) the Price shall be the Company’s trade price on the date the Goods are delivered. (b) The Company may by giving notice to the Customer at any time up to 7 days before delivery increase the Price to reflect any increase in the cost to the Company of procuring or supplying the Goods which is due to factors beyond its reasonable control (including without limitation foreign exchange fluctuations, taxes and duties and the cost of labour, materials and manufacturing costs) provided that in such circumstances the Customer may cancel the Contract up to 3 days before the due date for delivery. (c) All prices quoted are exclusive of Value Added Tax and delivery charges unless otherwise stated. (d) If the Company agrees to deliver Goods other than in accordance with Condition 6(a)(i) it may recharge the delivery costs to the Customer plus an administration fee.
(a) Credit accounts may be opened at the discretion of the Company, subject to satisfactory credit references being obtained. Unless otherwise agreed in writing, payment for Goods supplied on credit accounts shall become due and payable no later than the last day of the month following the month of delivery. However if the Goods concerned are Specials the Company may instead apply the payment terms in Condition 5(b). (b) For cash Customers, that is, Customers who do not have a credit account with the Company or whose credit account is cancelled or suspended under Condition 5(g) and in respect of the supply of Specials to credit account Customers and other non-standard transactions (as determined by the Company), the Customer shall pay the price for the Goods on acceptance of order, or on or before delivery, (where applicable), upon receipt of the Company’s invoice. (c) No payment shall be deemed to have been received until the Company has received cash or cleared funds. Time for payment shall be of the essence. Notwithstanding any other provision, all payments payable to the Company under any Contract shall become due immediately if the Company becomes entitled to terminate the Contract under Condition 15(a) or the Contract otherwise terminates. (d) Any queries on an invoice must be raised in writing by the Customer within 21 days of the invoice date, otherwise the invoiced amount shall be deemed to be accepted by the Customer. (e) Without prejudice to the Company's rights to enforce payment, if the Customer fails to make payment in accordance with these Conditions the Company may (at the Company’s absolute discretion) charge interest on any balance outstanding (notwithstanding that a portion of the account or invoice is the subject of any dispute or query) from the due date for payment until payment is made, whether before or after any judgment either: (i) at the annual rate of 5% above the base lending rate from time to time of Lloyds TSB Bank plc; or (ii) at the rate and on the basis permitted under the Late Payment of Commercial Debts (Interest) Act 1998. (f) The Customer shall indemnify the Company, against all costs (including legal costs) and expenses incurred by the Company in recovering amounts due from the Customer, or exercising its rights under this Condition 5, including any administration fee incurred if the Company refers a late/non payment dispute to its lawyers or collection agents. (g) The Company may cancel or suspend the Customer’s credit account by notice in writing at any time should it decide, for whatever reason, that it requires further security from the Customer, other than that already provided (if any). If the Company exercises such rights it may continue trading with the Customer in accordance with Condition 5(b). The Company may reinstate the credit account once the additional security required has been provided by the Customer and any other conditions have been met. The Customer agrees to use its best endeavours to ensure that any additional security required by the Company (including but not limited to a third party guarantee) is provided. (h) The Company may at any time, at its sole discretion and without reference to the Customer or any guarantor: (i) increase (without limit) or decrease any credit limit applied to the Customer; and (ii) supply Goods in excess of the credit limit. The Company may take action to collect all monies owing in full whether or not the sums due exceed the prevailing credit limit. Where more than one invoice is outstanding the Company may choose against which invoice(s) to apply any payment from the Customer even if the Customer has allocated the payment to a specific invoice. (i) The Customer shall give the Company prior written notice, which acknowledges service, of any change in its constitution or ownership or, in the case of a sole trader or partnership, if it wishes to incorporate or merge with others. The Company may then decide whether to exercise its rights in Condition 5(g) to continue trading with the Customer, whether a new credit application is required and whether to continue with any credit arrangements granted to the Customer and shall not be obliged to continue with either unless a written confirmation and acceptance is issued by an authorised member of the Company’s credit management team, a Company director or the Company Secretary. (j) If a cheque used by the Customer to pay an account is dishonoured the Company may debit the Customer's account with any charge or cost incurred by the Company as a consequence. If the Company accepts payment by credit card it may levy a surcharge at its standard rates in force at the time of payment. (k) On termination of the Contract, howsoever caused, the Company’s rights contained in this Condition 5 shall remain in effect.
(a) Delivery of the Goods shall be made: (i) by the Customer collecting the Goods at the Company’s premises at any time after the Company has notified the Customer that the Goods are ready for collection; or (ii) if some other place for delivery is agreed by the Company, by it delivering the Goods to that place. (b) Risk of damage to or loss of the Goods shall pass to the Customer: (i) in the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Customer that the Goods are available for collection; (ii) in the case of Goods to be delivered other than at the Company’s premises, on delivery to the agreed destination; and (iii) if the Customer fails to take delivery of the Goods, at the time when the Company has tendered delivery of the Goods. (c) If Goods are delivered by or on behalf of the Company other than at the Company’s premises: (i) the Company accepts no liability whatsoever for any loss of or damage to the Goods whilst in transit unless it is notified in writing with the details of the damage within 7 days of despatch; (ii) the Customer shall give the Company such access to its premises as the Company requires in order to deliver the Goods and shall provide the labour and equipment required to complete the delivery; and (iv) the Company may charge the Customer for any return visits made as a result of the Customer’s failure to take delivery of the Goods. (d) Any stated time or date for delivery is an estimate only and is not binding on the Company. The Company shall not be liable for any failure to deliver by such time or date, nor for any loss or damage arising directly or indirectly from such failure. The Customer may not refuse to accept Goods because of late delivery; nor, where Goods are to be delivered in instalments, shall the Company’s failure to deliver any instalments by any time or date entitle the Customer to treat the Contract as a whole as repudiated. (e) If the Customer fails to take delivery of Goods or to give the Company adequate instruction for delivery then, without prejudice to its other rights, the Company may: (i) store the Goods until actual delivery and charge the Customer for the costs (including insurance) of storage; or (ii) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for any excess over the Price or charge the Customer for any shortfall against the Price. (f) Where delivery is to be made by instalments, each instalment shall be deemed to be a separate and distinct contract and no default by the Company in respect of any one or more instalment shall entitle the Customer to reject or withhold payment in respect of any other instalment. (g) The Company shall provide evidence (such as a delivery note) of the delivery of Goods supplied in response to a request from the Customer provided it is received within 3 months of the delivery date. If the Customer does not raise any query about delivery within such period, the Goods concerned shall be deemed to have been delivered in accordance with the Contract. (h) The Company does not accept liability for shortages in quantities delivered unless the Customer notifies the Company of any claim for short delivery of the Goods within 2 days of the delivery to the Customer. In such circumstances the Company’s liability shall be restricted to making good the shortage. Any delivery book or note marked “NOT EXAMINED” will not prevent the operation of these clauses nor constitute express or implied notice in writing of any potential or actual shortage
The Customer shall ensure that: (i) the Goods are sufficiently suitable and fit for the purpose intended and comply with all applicable requirements whether statutory, regulatory, municipal or otherwise; (ii) its premises are safe and suitable for the delivery, installation, use and operation of the Goods and comply both before and after such delivery, installation and during such operation with all relevant legislation (including without limitation safety legislation); (iii) any item of equipment provided by it which relates to the installation or operation of the Goods or is ancillary to or is for use in connection with the Goods shall not adversely affect their suitability or fitness for purpose.
(a) Subject to Condition 9(a) the Company agrees (in its discretion) to repair (if possible), replace free of charge or refund any sums paid by the Customer for any Goods which in the reasonable opinion of the Company are defective due to a manufacturing fault but only if: (i) such fault is notified to the Company in writing within 7 days of delivery; and (ii) the Company and/or its representative is given a reasonable opportunity after receiving the notice of examining such Goods in situ or the Customer (if asked to do so by the Company) returns such Goods to the Company, at such address specified by the Company, for the examination to take place there. (b) The Company shall not be liable for a breach of the warranty in Condition 8(a) if: (i) the Customer makes any further use of such Goods after giving notice of a defect; or (ii) the defect arises because the Customer failed to follow the Company’s or the manufacturer’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 (iii) the Customer alters or repairs such Goods without the written consent of the Company. (c) The Company is not responsible either for the cost of removing or re-installing any repaired or replacement Goods, unless previously agreed in writing by a Company director. (d) Any defective Goods or parts thereof replaced by the Company in accordance with this Condition or otherwise shall become, or remain, the property of the Company. (e) Where the Company is not the manufacturer of the Goods, the Company will endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Company.
(a) Nothing in these terms shall be deemed to exclude or restrict the Company’s liability for: (i) death or personal injury resulting from its negligence; (ii) fraudulent misrepresentation; or (iii) any breach on its part of any undertaking as to title implied by Section 12 of the Sale of Goods Act 1979 (as amended) or by Section 8 of the Supply of Goods (Implied Terms) Act 1973 (as amended). (b) Subject to Condition 9(a), the Company’s total aggregate liability under or in connection with the Contract (howsoever such liability arises, whether in contract or tort or otherwise, including for negligence) shall be limited to the value of the Goods supplied under the Contract. (c) Subject to Condition 9(a), the Company shall not be liable (howsoever such liability arises, whether in contract or tort or otherwise, including for negligence) for any indirect or consequential loss or for damage to or for loss of profit, business, savings, production or goodwill which arises out of or in connection with the Contract. (d) Where the Company sells Goods to a Customer who is not a Consumer and the Customer sells those Goods directly or indirectly to a person who is such a Consumer, without prejudice to its rights under the Contract the Customer shall indemnify the Company against any liability or loss whatsoever arising directly or indirectly pursuant to the Consumer Protection Act 1987. (e) The Customer shall indemnify the Company from and against all loss, damage, or liability suffered or incurred by the Company or any third person for or arising out of the negligence, breach of statutory duty, breach of contract or other duty of the Customer or its officers, employees, agents or contractors, in each case in the course of performance of or otherwise in any way arising out of or in connection with the Contract. (f) These Conditions set out the Company’s entire liability in respect of the Goods and rights granted under them are in lieu and to the exclusion of all other warranties, conditions and other terms express or implied by statute, common law or a course of business except for any which cannot legally be excluded.
(a) The Company shall not be liable in respect of any misrepresentation made by the Company its servants or agents to the Customer its servants or agents as to the condition of the Goods, their fitness for any purpose or as to quantity or measurements unless the representation is made or confirmed in writing by the Company and/or is fraudulent. (b) Without prejudice to Condition 10(a), whilst the Company takes every precaution in the preparation of its catalogues technical circular price lists and other literature, these documents are for the Customer’s general guidance only and statements made in them (in the absence of fraud on the part of the Company) shall not constitute representations by the Company and the Company shall not be bound by them.
(a) Unless the Company agrees otherwise in writing, ownership of the Goods shall not pass to the Customer until the Company has received from the Customer payment for the Goods and all other sums which are due to the Company from the Customer. (b) Until ownership has passed in accordance with Condition 11(a), the Customer shall: (i) hold the Goods on a fiduciary basis as the Company’s bailee; and (ii) store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property; and (iii) not destroy, deface or obscure any identifying mark, serial number or packaging on or relating to the Goods; and (iv) maintain the Goods in satisfactory condition, keep them insured on the Company’s behalf for their full Price against all risks and provide the Company with a copy of the insurance policy on request; and (v) deliver up the Goods to the Company on demand. (c) The Customer may only resell the Goods before ownership has passed if such sale is made in the ordinary course of the Customer’s business at full market value and is a sale of the Company’s property on the Customer’s own behalf dealing as principal. The Customer shall hold such part of the proceeds of sale as represents the amount owed by the Customer to the Company for the relevant Goods separately (in a bank account that does not contain any third party monies and is not overdrawn) on trust on behalf of the Company and the Customer shall promptly account to the Seller on such sale. (d) The Customer’s right to possession of the Goods shall terminate immediately if the Customer: (i) becomes insolvent (as defined in Condition 15(b)); or (ii) suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it; or (iii) fails to observe or perform any of its obligations under the Contract or any other contract it has with the Company; or (iv) encumbers or in any way charges any of the Goods. (e) The Company may recover payment for the Goods notwithstanding the fact that ownership of any of the Goods has not passed from the Company to the Customer. (f) The Customer grants, and in the case of third parties shall procure, the Company and its agents and employees an irrevocable licence at any time to access and enter any premises where the Goods are or may be stored to inspect, repossess and remove them. (g) Where the Company is unable to determine whether any Goods are the goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer. (h) Should the Company repossess any Goods or the Customer delivers up any Goods, in accordance with this Condition 11, the Contract in respect of those particular Goods is rescinded. (i) On termination of the Contract, howsoever caused, the Company’s rights contained in this Condition 11 shall remain in effect.
12. Sizes and Weights etc.
(a) All sizes stated by the Company or a manufacturer are subject to dimensional tolerances in accordance with the appropriate BSS. (b) The Company may deliver to the Customer an excess and/or deficiency of up to 10% of the weight or volume it agrees to deliver without any liability to the Customer and in such circumstances the Price payable by the Customer shall be adjusted accordingly.
13. Pallets and Packaging
(a) The Company may charge for any packaging provided on a time and materials basis. Charges levied by the Company for crates, cases, pallets or aggregate bags will be credited if reusable items in good condition are returned to the Company carriage paid within 28 days of delivery. Polythene sacks are nonreturnable. (b) The Customer is solely responsible for the disposal of any waste arising from the Goods once delivered and will comply with all applicable laws, regulations and waste management licences relating to such waste.
14. Force Majeure
The Company may defer the date of delivery or cancel the Contract or reduce the volume of Goods ordered by the Customer (without liability) if it is prevented from or delayed in performing due to circumstances beyond its reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, 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.
15. Default and Termination
(a) If the Customer becomes insolvent or commits any breach of the Contract the Company may, without prejudice to its other rights, stop any Goods in transit and/or suspend further deliveries and by notice in writing to the Customer terminate the Contract. (b) For the purposes of Conditions 11(d) and 15(a) “insolvent” means the Customer becoming unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, the levying of the threat of execution or distress on any property of the Customer, the appointment of a receiver or administrative receiver over all or any part of the Customer’s property, a proposal for a voluntary arrangement or compromise between the Customer or its creditors whether pursuant to the Insolvency Act 1986 or otherwise, the passing of a resolution of voluntary winding-up or summoning a meeting to pass such a resolution other than for the purposes of a bona fide amalgamation or reconstruction, the presentation of a petition for the winding-up of the Customer or an administration order in relation to the Customer, the Customer ceasing or threatening to cease to carry on its business or the Company reasonably contemplating that any of the foregoing will occur. (c) If the Company is entitled to terminate the Contract under Condition 15(a) the Customer’s licence to sell in Condition 10(ii) ends automatically and the Company may, without prejudice to its other rights: (i) in the case of any sale involving more than one delivery forthwith suspend any further deliveries; (ii) demand immediate payment of all sums then payable by the Customer regardless of whether the Customer is in default of the contract under which such sums are payable, including such sums not yet due.
16. Patent and Trade Marks
(a) No representation is made or warranty given that any Goods supplied do not infringe any letters patent, trademarks, registered designs, or similar industrial or intellectual property rights. (b) The Customer will unconditionally fully and effectively indemnify the Company against all losses, damages, costs or expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company as a consequence of the Company supplying Goods to specifications or designs provided by or on behalf of the Customer, including in settlement of any claim for infringement of any patents, copyright, design, trademark or any other industrial or intellectual property rights of any other person.
Any notice under or in connection with the Contract shall be in permanent readable form and shall be deemed properly delivered if addressed to the party concerned at its principal place of business or last known address and sent by first class pre-paid post. Such notice shall be deemed to be delivered 48 hours after posting
18. Disputes and Set-Off
Any liability of the Company under the Contract shall be subject to and conditional upon the due performance and observance by the Customer of all its obligations under these Conditions and the Customer may not withhold or delay payment or exercise any rights of set-off whatsoever and howsoever arising which might otherwise be available to it.
No failure or delay on the part of the Company to exercise any of its rights under the Contract shall waive of those rights, nor shall any single or partial exercise of such rights preclude their further exercise. Any waiver by the Company of any breach by the Customer of any of its obligations under the Contract shall not affect the rights of the Company if there is any further or additional breach.
20. Health & Safety
Certain Goods could, if incorrectly used, give rise to risks to health and safety. Information in respect of such Goods is available from the Company. The Customer undertakes that it shall ensure compliance so far as is reasonably practicable by its employees, agents, licensees and customers with any instructions given by the Company or the manufacturer for the purpose of ensuring that the Goods are safe and without risk to health when properly used and will take any other steps or precautions, having regard to the nature of the Goods, as are necessary to preserve the health and safety of persons handling, using or disposing of them.
Each and every obligation contained in these Conditions is a separate obligation and if any provision of these Conditions 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 Conditions and the remainder of such provision shall continue in full force and effect. If any illegal, invalid, void, voidable, unenforceable or unreasonable provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
The headings in these Conditions are for convenience only and shall not affect their interpretation.
23. Governing Law
(a) Subject to Condition 23 (b), the Contract shall be governed by and construed in accordance with English law and all disputes arising in connection with the Contract shall be submitted to the non-exclusive jurisdiction of the English Courts. (b) If the Customer is domiciled in Scotland (according to the Civil Jurisdiction and Judgements Act 1982) or Goods are delivered to the Customer in Scotland, the Company may elect that the Contract shall be governed by and construed in accordance with Scottish law and/or all disputes arising in connection with the Contract shall be submitted to the jurisdiction of the Scottish Courts.
24. Credit Search
The Company will make a search with a Credit Reference Agency, who will keep a record of that search and will share the information with the Company and other businesses. In some instances the Company may also make a search on the personal credit file of principal directors. The Company may also pass or share Customer information with carefully selected third parties for the purposes of account opening, credit vetting and account management. Should it become necessary to review an account, then again a credit reference may be sought and a record kept. The Company will monitor and record information relating to Customer trade performance and such records will be available to Credit References Agencies who will share that information with other businesses when assessing applications for credit and fraud prevention. For the purposes of credit referencing the Company may also share information with other businesses.
The Customer may not assign the Contract without the prior written consent of the Company. The Company may assign or sub-contract the Contract or any part of it to any person, firm or company.
26. No Rights to Third Parties
Subject to Condition 25, the parties to the Contract do not intend that any of it terms are enforceable by virtue of the Contract (Rights of Third Parties) Act 1999 by any person that is not a party to it.
27. Guarantee of Sums Due
(a) Where any person or persons (“the Guarantor”) agree to guarantee the performance of the Customer’s financial obligations under the Contract that guarantee (“the Guarantee”) shall be an unconditional and irrevocable guarantee, it is made in consideration of the Company making available to the Customer a credit account, it is a continuing security and shall not be discharged by any intermediate settlement of the Customer’s credit account nor shall it be affected by any change in the Customer’s credit limit. (b) The Guarantee shall ensure for the benefit of the Company, its successors and assigns and can be assigned in whole or in part by the Company without notice to the Guarantor, its parent or ultimate parent company or any subsidiary of the ultimate parent company. (c) Where there are two or more Guarantors their obligations shall take effect as joint and several obligations and the Guarantee shall not be revoked or impaired as to a Guarantor by the death, incapacity or insolvency of another. (d) Regardless of whether a Guarantor ceases to be a director, employee, agent, or otherwise leaves the service of the Customer (notice of any of which the customer shall immediately give to the Company), no Guarantor shall be discharged or released from his obligations pursuant to the Guarantee unless and until the Company expressly confirms in writing that he is so discharged or released. (e) The Company may, at its sole discretion, conditionally or fully release or discharge any Guarantor from his obligations under the Guarantee or accept any composition from or make any other arrangements with any Guarantor without releasing or discharging the other(s) or without prejudicing or affecting the Company's rights and remedies against them.