TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES
- DEFINITIONS AND INTERPRETATION
In these Conditions:
1.1 the following words and expressions have the following meanings and, in addition, any words and expressions defined in any Condition will have the same meaning when used in any other Condition:
|“Business Day”||a day that is not a Saturday, Sunday or public or bank holiday in England and/or Wales|
|“Charges”||the charges for the goods & services set out in our price list in force on the date on which the Order form is signed. The charges may be varied from time to time in accordance with Condition 6.4.|
|“Liability”||liability arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including any liability arising from a breach of, or a failure to perform or defect or delay in performance of, any of a party’s obligations under the Contract and/or any defect in any of the Goods, in each case howsoever caused including if caused by negligence.|
|“Order”||your order for the supply of goods and services by us, by your acceptance of our order form.|
|“Order form”||our written acceptance of the Order set out in our standard order form.|
|“Prices”||the prices for the Goods set out in our order form in force on the date on which the order form is signed.
|“Property Liability”||Liability for loss or destruction of or damage to tangible property (excluding data), but not Liability arising from any such loss, destruction or damage|
|“Specification”||the written technical specification for the Goods set out in our order form.|
|“you”||the person named as the customer in the order form.|
1.2 all headings are for ease of reference only and will not affect the construction or interpretation of these Conditions;
1.3 references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality);
1.4 references to any statute or statutory provision will include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time; and
1.5 any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them; and
1.6 the rule known as the ejusdem generis rule will not apply and accordingly the meaning of general words introduced by the word “other” or a similar word or expression will not be restricted by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things; and
1.7 any reference to:
1.7.1 time of day is to London time;
1.7.2 a day is to a period of 24 hours running from midnight to midnight
1.8 an obligation on a party to procure or ensure the performance or standing of another person will be construed as a primary obligation of that party.
- CONTRACT FORMATION
2.1 Any quotation given by us will be valid for a period of 10 days from and including its date, and will constitute an invitation to trade and not an offer.
2.2 The order form constitutes an offer by you to purchase the goods set out in the order form (“Goods”) and the services set out in the order form (“Services”) from us on these Conditions. A contract for the supply of Goods and Services by us to you on these Conditions will be formed when we accept the order form by issuing a signed order form to you. For the avoidance of doubt, we are under no obligation to accept the order form.
2.3 These conditions are the only terms and conditions on which we will supply goods and services to you and will apply to the exclusion of all other terms and conditions including any terms and conditions which you purport to apply under any purchase order, confirmation of order or similar document (whether or not such document is referred to in the Contract) and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing.
2.4 Acknowledgment and signing of the order form will be deemed conclusive evidence of your acceptance of these Conditions.
2.5 We will be entitled, at our discretion, to deliver Goods by separate instalments. We will be entitled to invoice the Price for each instalment separately. Each instalment will be deemed to be a separate contract and no cancellation or termination of any one contract relating to an instalment will give you the right to cancel or terminate any other contract.
- THE GOODS
3.1 We will be entitled at any time to:
3.1.1 vary the content, volume of Goods and/or their packaging; and/or
3.1.2 substitute any materials or parts which are used in Goods and which are unavailable for any reason with alternative materials or parts
to the extent that:
3.1.3 this does not materially affect their quality or performance; or
3.1.4 this is necessary to comply with any health and safety or other legal requirements.
We will use reasonable endeavours to give you not less than 15 days written notice of any such variation or substitution
With the exception of the specification on the order form, all samples, drawings, descriptive and illustrative matter and advertising issued or published by us whether in catalogues, brochures, websites, other promotional material or otherwise are for the sole purpose of giving an approximate idea of the relevant goods.
3.2 The Contract is not a sale by sample.
Unless otherwise ageed, you will collect the Goods from our stipulated premises and will load them onto the collecting vehicle during the hours of 9:00 am to 5:00 pm and within a period of 15 days from and including the day on which we inform you that the Goods are available for collection. Ownership of the Goods will be deemed to occur at the time of collection.
4.1 We will use reasonable endeavours to make available for collection the Goods on the estimated collection date set out in the Order form, but time for collection of the Goods will not be of the essence of the Contract. Any collection dates given by us are estimates only save for the dates which we inform you of.
4.2.1 the Goods have not been made available for collection within 30 days from and including the estimated collection date set out in the Order form; and
4.2.2 we fail to make those Goods available for collection within 45 days of a written notice referring to this condition and setting out your rights under it being given by you, you will be entitled to cancel the Contract by giving written notice to that effect to us.
4.2.3 If you exercise your right of cancellation we will refund to you any monies which you have already paid to us under the Contract and you will not be required to pay any further monies to us under the Contract. Our sole Liability for our failure to deliver the Goods will be limited to the price paid by you in obtaining replacement goods of equivalent description and quality in the cheapest market available, less the Price of the Goods.
4.3 You will not be entitled to cancel the Contract or to reject any Goods by reason of a delay in collection or failure to collect.
4.4 If collection is attempted but you fail to accept delivery of the Goods we will be entitled to:
4.4.1 store or arrange for storage of the Goods until you collect them or they are disposed and to take such action as we consider necessary to attempt to offer an alternative collection time.
4.4.2 following written notice to you, treat the Contract as repudiated by you and dispose of the Goods in any way we see fit, including by sale to another person. If we sell any of the Goods under this condition at a price which is less than the relevant Price plus any relevant packaging, insurance, carriage and delivery costs, we will be entitled to charge you for the shortfall; and
4.4.3 charge you for all costs and expenses which we incur.
- PASSING OF RISK AND RETENTION OF TITLE
5.1 Risk of damage to or loss of the Goods will pass to you on collection.
5.2 Legal and beneficial ownership of the Goods will not pass to you until we have received in full in cleared funds:
5.2.1 all sums due to us in respect of the Goods; and
5.2.2 all other sums which are or which become due to us from you on any account whatsoever.
5.3 Your right to possession, use and resale of the Goods will terminate immediately if, before ownership of the Goods passes to you:
5.3.1 you have a receiver, administrator or provisional liquidator appointed; are subject to a notice of intention to appoint an administrator; pass a resolution for your winding-up (save for the purpose of a solvent restructuring previously approved in writing by us); have a winding up order made by a court in respect of you; enter into any composition or arrangement with creditors (other than relating to a solvent restructuring previously approved in writing by us); or cease to carry on business; or have any steps or actions taken in connection with any of these procedures;
5.3.2 we give you written notice that we have any reasonable concerns regarding your financial standing;
5.3.3 you fail to pay any sum due to us under the Contract on or before the due date/are in breach of any of your obligations under the Contract or any other contract between us and you;
5.3.4 you encumber or in any way charge any of the Goods; or
5.3.5 the Contract expires or terminates for any reason.
5.4 We will be entitled to recover payment for the Goods (including by way of an action for the price) notwithstanding that ownership of any of the Goods has not passed from us.
5.5 Our rights contained in this condition will survive expiry or termination of the Contract however arising.
- PRICE AND PAYMENT
6.1 You will pay the Prices and Charges to us in accordance with the order form.
6.2 The Prices and Charges are exclusive of insurance, carriage and delivery costs and those reasonable travel, accommodation and subsistence expenses reasonably and properly incurred by us from time to time in performing the Services (“Expenses”) which will be payable by you in addition to the Prices and Charges.
6.3 Any sum payable under the Contract is exclusive of UK taxes where applicable (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable in addition to that sum in the manner and at the rate prescribed by law from time to time.
6.4 We will be entitled to vary the Prices and/or Charges at any time by giving written notice to you to reflect any variation in the cost of supplying the Goods and/or Services which arises as a consequence of any change in law/any variation in your requirements for the Goods and/or Services/any information provided by you being inaccurate or incomplete or any failure or delay by you in providing information.
6.5 We will be entitled to invoice you for the Prices for the Goods and any packaging, insurance, carriage and delivery costs payable by you in addition to the Prices and the Charges and any Expenses payable by you in addition to the Charges following us issuing the order form.
6.6 We will be entitled to invoice you for the Charges for the Services and any Expenses payable by you in addition to the Charges following commencement of performance of the Services.
6.7 Each invoice will be payable by you with 10 days following the date on which the invoice is issued. All payments will be made in pounds sterling in cleared funds.
6.8 Notwithstanding any purported contrary appropriation by you, we will be entitled, by giving written notice to you, to appropriate any payment by you to any invoice issued by us.
6.9 If any sum payable under the Contract is not paid on or before the due date for payment we will be entitled to charge you interest on that sum at the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998 at 5% from the due date until the date of payment (whether before or after judgment), such interest to accrue on a daily basis and be compounded Quarterly.
6.10 If you fail to make any payment due to us under the Contract or any other contract between you and us on or before 15 days after the due date we will be entitled to withhold further deliveries of Goods and to suspend provision of the Services until payment of all overdue sums has been made.
6.11 If you fail to make any payment due to us under the Contract on or before the due date or if we have any reasonable concerns regarding your financial standing we will be entitled, by giving written notice to that effect to you, to issue invoices prior to Goods being made available for collection and we will not be required to make available for collection the Goods until the relevant invoice has been paid in full.
6.12 If you fail to make any payment due to us under the Contract on or before the due date or if any of the events or circumstances set out in Conditions 5 occur all invoices issued will immediately become due and payable.
6.13 Save as otherwise expressly provided in these Conditions or required by law, all payments to be made by you to us under the Contract will be made in full and without any set-off or any deduction or withholding including on account of any counter-claim.
6.14 Following expiry or termination of the Contract:
6.14.1 we will be entitled to invoice all Prices and Charges and any packaging, insurance, carriage and delivery costs and Expenses incurred which have not yet been invoiced; and
6.14.2 all invoices will become immediately due and payable by you.
7.1 We warrant to you that we will provide the Services with reasonable care and skill.
7.2 We will use reasonable endeavours to provide the Services on the estimated performance date set out in the Order form, but time for provision of the Services will not be of the essence of the Contract. Any performance dates given by us are estimates only.
- EXCLUSIONS AND LIMITATIONS OF LIABILITY
Your attention is particularly drawn to this Condition.
8.1 Our entire Liability for any non-availibility of Goods or failure to provide the Goods in accordance with the timescales set out or referred to in the Contract will be as set out in Condition 4 and we will have no other Liability for any such non-delivery or failure to deliver.
8.2 We will have no Liability to you for any:
8.2.1 loss of profit (whether direct, indirect or consequential);
8.2.2 loss of revenue, loss of production or loss of business (in each case whether direct, indirect or consequential);
8.2.3 loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct, indirect or consequential);
8.2.4 loss of anticipated savings or loss of margin (in each case whether direct, indirect or consequential);
8.2.5 liability that you have to third parties (whether direct, indirect or consequential); or
8.2.6 indirect, consequential or special loss.
8.3 We will not be in breach of the Contract or otherwise liable to you for any failure to perform or delay in performing our obligations under the Contract to the extent that such failure or delay is due to any event or circumstance beyond our reasonable control.
8.4 Nothing in the Contract will operate to exclude or restrict one party’s Liability (if any) to the other:
8.4.1 for death or personal injury resulting from its negligence or the negligence of a person for whom it is vicariously liable (negligence being as defined in Section 1(1) Unfair Contract Terms Act 1977);
8.4.2 for its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by a person for whom it is vicariously liable;
8.4.3 for breach of its obligations arising under section 12 Sale of Goods Act 1979;
8.4.4 for breach of its obligations arising under Section 2 Supply of Goods and Services Act 1982;
8.4.5 for breach of its obligations arising under Section 8 Supply of Goods (Implied Terms) Act 1973;
8.4.6 arising under Section 2(3) Consumer Protection Act 1987; or
8.4.7 for a deliberate breach of the Contract by that party; or
8.4.8 for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.
8.5 Nothing in this condition will prevent or restrict the right of a party to seek injunctive relief or specific performance or other discretionary remedies of the court.
8.6 Each of our employees, agents and sub-contractors will be entitled to enforce all the terms of this Condition 8subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999 and the terms of the Contract. Accordingly and for the avoidance of doubt the financial limits on liability are the maximum liability of us, our employees, agents and sub-contractors in aggregate. The parties may vary or rescind the Contract without the consent of our employees, agents or sub-contractors.
- YOUR OBLIGATIONS
9.1 You will:
9.1.1 obtain such licences, permits, consents and authorisations as may be required; and
9.1.2 return packaging to/make packaging available for collection by us, as required by us.
9.2 You will comply with our instructions in connection with any product recall initiated by us involving the Goods (or any of them).
9.3 Notwithstanding any other term of the Contract we will not be in breach of the Contract to the extent our failure to perform or delay or defect in performance of its obligations under the Contract arises as a result of:
9.3.1 any breach by you of your obligations contained in the Contract provided that we use our reasonable endeavours to perform our obligations notwithstanding the breach by you;
9.3.2 us relying on any incomplete or inaccurate data provided by a third party; or
9.3.3 us complying with any instruction or request by you or one of your employees.
10.1 If you commit a material breach of the Contract we may terminate the Contract immediately by giving not less than 15 days’ written notice to that effect to you.
10.2 We may terminate the Contract immediately by giving/by giving not less than 7 days written notice to that effect to you if you fail to make any payment due to us under the Contract on or before 15 days after the due date.
10.3 We may terminate the Contract immediately by giving written notice to that effect to you if any of the events or circumstances that cause a breach of contract occur. You will notify us immediately upon the occurrence of any such event or circumstance.
10.4 If an event or circumstance which gives rise to relief from liability continues for a period of more than 15 days, either party will be entitled to terminate the Contract immediately by giving not less than 15 days’ written notice to that effect to the other party.
10.5 Following expiry or termination of the Contract:
10.5.1 any Conditions which expressly or impliedly continue to have effect after expiry or termination of the Contract will continue in force; and
10.5.2 all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of expiry or termination.
10.6 Within 15 days after the date of expiry or termination of the Contract each party will;
10.6.1 return to the other party all Confidential Information (including all copies and extracts) of the other party in its possession or control; and
10.6.2 cease to use the Confidential Information of the other party.
10.7 Each party may retain any Confidential Information of the other party which it has to keep to comply with any applicable law or which it is required to retain for insurance, accounting or taxation purposes
11.1 Confidential Information” means any information (whether written, oral, in electronic form or in any other media) that:
11.1.1 is disclosed by or on behalf of a party (the “Discloser”) to the other party (the “Recipient”) in connection with the Contract and that relates (in whole or in part) to the Discloser or its business; and/or
11.1.2 relates to the existence or terms of the Contract,
11.2 The Recipient will:
11.2.1 keep the Confidential Information secret, safe and secure and will only disclose it in the manner and to the extent expressly permitted by the Contract; and
11.2.2 use the Confidential Information only to the extent necessary for the performance of its obligations under the Contract.
11.3 The Recipient may disclose Confidential Information:
11.3.1 to such of its officers and employees and, in our case, agents and sub-contractors, who need access to that Confidential Information for the purpose of complying with its obligations under the Contract;
11.3.2 to the extent necessary in order to be able to refer a dispute for resolution and
11.3.3 to the extent required by applicable law or a court of competent jurisdiction or the rules of any listing authority, stock exchange, the Panel on Takeovers and Mergers or a regulatory authority.
11.4 The Recipient’s obligations under this Condition will not extend to Confidential Information which the Recipient can prove:
11.4.1 has ceased to be secret without default on the Recipient’s part;
11.4.2 was already in the Recipient’s possession prior to disclosure by or on behalf of the Discloser;
11.4.3 has been received from a third party who did not acquire it in confidence and who is free to make it available to the Recipient without limitation;
11.4.4 was independently developed by the Recipient without any breach of the Contract; or
11.4.5 at the time of disclosure was in the public domain or subsequently enters into the public domain without default of the Recipient.
11.5 The Recipient acknowledges and agrees that damages alone would not be an adequate remedy for breach by the Recipient. Accordingly, the Discloser will be entitled, without having to prove special damages, to equitable relief (including injunction and specific performance) for any breach or threatened breach of this Condition by the Recipient.
12.1 Any notice or other communication given under or in connection with the Contract will be in writing, in the English language and:
12.1.1 sent by pre-paid first class post/recorded delivery/airmail post to the relevant party’s address;
12.1.2 delivered to or left at (but not, in either case, by post) the relevant party’s address; or
12.1.3 sent by facsimile to the relevant party’s facsimile number
and, in the case of any notice or other communication to be given to us, marked for the attention of our specified representative. Our address, email address and representative are set out below and your address and email address are those detailed in the Order, and may be changed by the relevant party giving at least 15 days notice in accordance with this Condition 12.
483 Green Lanes, London, N13 4BS, United Kingdom
For the attention of: Allan Bradbury (Director)
12.2 Any notice or communication given will be deemed to have been served:
12.2.1 if given at 9.00 a.m. on the 15th day after the date of posting;
12.2.2 if given at the time the notice or communication is delivered to or left at that party’s address; and
12.2.3 if given at the time of confirmation of completion of transmission of the email by way of a transmission report;
provided that if a notice or communication is deemed to be served before 9.00am on a Business Day it will be deemed to be served at 9.00am on that Business Day and if it is deemed to be served on a day which is not a Business Day or after 5.00pm on a Business Day it will be deemed to be served at 9.00am on the immediately following Business Day.
12.3 To prove service of a notice or communication it will be sufficient to prove that the provisions were complied with.
12.4 This will not apply to the service of any proceedings or other documents in a legal action to which the Civil Procedure Rules apply.
13.1 The Contract constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter and:
13.1.1 neither party has entered into the Contract in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement (whether made by the other party or any other person) which is not expressly set out in the Contract;
13.1.2 the only remedies available for any misrepresentation or breach of any representation or statement which was made prior to entry into the Contract and which is expressly set out in the Contract will be for breach of contract; and
13.1.3 nothing in this Condition will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation.
13.2 A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
13.3 If any term of the Contract including any exclusion from, or limitation of, liability is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Contract and this will not affect the remainder of the Contract which will continue in full force and effect.
13.4 No variation to the Contract will be effective unless it is in writing and signed by a duly authorised representative/director on behalf of each of the parties.
13.5 Nothing in the Contract and no action taken by the parties in connection with it or them will create a partnership or joint venture or relationship of employer and employee between the parties or give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so.
13.6 Each party agrees that it is an independent contractor and is entering into the Contract as principal and not as agent for or for the benefit of any other person.
13.7 the parties do not intend that any term of the Contract will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.
13.8 Our rights and remedies set out in these Conditions are in addition to and not exclusive of any rights and remedies provided by law.
13.9 You will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of your rights under the Contract. You will be entitled to sub-contract your obligation to collect Goods, and you will not be entitled to sub-contract any of your other obligations under the Contract.
- GOVERNING LAW AND JURISDICTION
14.1 The Contract and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales.
14.2 Each party agrees that the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with the Contract (including in relation to any non-contractual obligations).
14.3 Either party may seek specific performance, interim or final injunctive relief or any other relief of similar nature or effect in any court of competent jurisdiction.