BUSINESS
Standard Terms and Conditions
for the Purchase of Goods
Contents
1. Interpretation
2. Application of Terms
3. Quality and Defects
4. Warranties and Liabilities
5. Delivery
6. Risk/property
7. Price
8. Payment
9. Confidentiality
10. Termination
11. Assignment
12. Force Majeure
13. Waiver
14. Variation of Terms
15. General
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Purchaser: The purchaser of the Goods, being a business, individual who is purchasing the Goods for business or non-business purposes.
Contract: The order and the Seller’s acceptance of the order.
Goods: Any Goods agreed in the Contract to be bought by the Purchaser from the Seller (including any part or parts of them).
Order: The Purchaser’s written instruction to supply the Goods, incorporating these conditions.
Price: The Price determined in accordance with clause …
Seller: The person, firm or Purchaser who accepts the Purchaser’s order.
Supplier: SPHeating Ltd. Unit A, High Street , Didcot industrial estate, OX11 7LW, Didcot / Oxfordshire / United Kingdom
Seller’s Lender: The Purchaser which is Royal Bank of Scotland Invoice finance,
|
|
|
|
|
|
|
|
Terms: The standard conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in writing between the Purchaser and the Seller.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 A reference to one gender includes a reference to the other gender.
1.4 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under Clause 2.3 and Clause 14, these conditions are the only conditions upon which the Seller is prepared to deal with the Purchaser and they shall govern the Contract to the entire exclusion of all other terms and conditions.
2.2 Each order for Goods by the Purchaser from the Seller shall be deemed to be an offer by the Purchaser to buy Goods subject to these conditions and no order shall be accepted until the Seller either expressly by giving notice of acceptance within seven days of receipt of the order, or impliedly by fulfilling the Order, in whole or in part accepts the offer.
2.3 The Purchaser accepts that this contract applies to all future agreements between the parties as it relates to the sale of the Goods. These conditions will apply to all of the Purchaser’s purchases and any variation to these conditions shall have no effect unless as effected by Clause 14.
3. QUALITY AND DEFECTS
3.1 The Goods supplied shall be fit for purpose, of satisfactory quality and match the description of the product specified.
3.2 If a specific product or product specifications are needed, the Seller will first need an acknowledgement of that description in writing. Providing the goods conform to the specifications provided and are fit for purpose, the Purchaser shall have no right to refuse acceptance of the Goods.
3.3 Notifications of specific product requirements have to be sent in writing to the offices of the Supplier, with the same being evidenced to the offices of the Seller. If this procedure is not followed, the Purchaser cannot reject the goods on the grounds of non-compliance with specific requirements.
3.4 Where product specifications are provided, the Purchaser will have the right to inspect (but not a right to test) a sample product. If the Purchaser accepts the Goods as a result of such inspection and is satisfied that the specifications have been adhered to, then the Seller shall take immediate measures to supply the quantities ordered and the Purchaser shall pay for the same on receiving an invoice from the Seller.
3.5 Inspection of the Goods by the Purchaser shall be at the Purchaser’s own cost and shall be carried out before the Goods are despatched for delivery.
3.6 The Seller will have no liability of any kind in respect of any defect caused during delivery or which becomes apparent following delivery.
3.7 At the discretion of the Seller, the Seller may provide a sample product to be inspected in the same manner as stated within this Clause if the order for the Goods is substantial. In this case, the Seller will dispatch the sample product prior to despatching the actual order of the goods.
3.8 If a fault is reported within the 7 days, then at the discretion of the Seller, the Seller will first inspect those goods at the property or site where delivery was made and following such inspection the Seller will either produce a credit invoice for the faulty goods or repair and/or replace the faulty goods as determined by the Seller on inspection.
3.8.1 If the Seller chooses to produce a credit invoice, the Seller will do so within 14 days of receipt of the notification of a fault save that where there is no fault then this clause shall not apply.
3.8.2 If the Seller chooses to repair and/or replace the faulty goods, the time in which this will occur will depend upon the size of the order. The Seller is obliged to inform the Purchaser as soon as reasonably possible on whether repairing and/or replacing the faulty Goods is feasible.
3.8.3 Where the buyer reports faults, if so required by the Seller, the buyer shall retain and store those goods on site until the seller carries out a full inspection, and under this clause time shall not be of the essence for carrying out the said inspection. The seller however shall use its best endeavours to conclude the inspection within 90 days of the fault being reported by the buyer.
3.9 Any fault found with any particular Good or item does not give the Purchaser the right to reject the remaining Goods of any Order placed.
3.10 The Purchaser accepts that it cannot raise a dispute for defects in the goods and that the Purchaser’s sole remedies in this regard are those provided for in Clause 3.8 (a credit invoice, repair, or replacement). The Seller shall have no further liability for a breach of any of the warranties in Clause 3.1 in respect of the Goods.
3.11 The Seller shall not be liable for a breach of any of the warranties in Clause 3.1 if:
3.11.1 the Purchaser makes any further use of the Goods after giving notice of a fault relating to that Good; or
3.11.2 The defect arises because you (or a third party engaged by you) failed to follow the instructions as to the storage, installation, commissioning, use or maintenance of the Product(s) of (if there are none) good trade practice; or
3.11.3 You alter or repair such Product(s).
4 WARRANTIES AND LIABILITIES
4.1 The seller will not accept liabilities for those goods which are found to be faulty in terms of look, size, except where such appearance of the product and size of the product fails to correspond with the description given by the seller. Non-exhaustive illustrations of faults which the Seller will not be liable for include:
4.1.1 minor faults to do with appearance, size and quality of finish of the Goods, providing the Goods remain saleable; and
4.1.2 in terms of appearance and quality of finish of the Goods, apart from the peeling of the chrome application and/or significant cracks found on the product, nothing else will be accepted as a fault by the Seller as the perfect application of the chrome look cannot be guaranteed.
4.2 The Purchaser warrants that it has not relied on any representations:
4.2.1 made by or on behalf of the Seller or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by or on behalf of the Seller, all of which are intended to convey a general idea of the products mentioned in them; and
4.2.2 made by any of the Seller’s sale representatives who are not authorised to do any of the following on behalf of the Seller:
4.2.2.1 remove or vary any of these terms or introduce any other terms, written or oral, into the contract;
4.2.2.2 make any representation, agree any condition precedent or enter into any collateral contract; and
4.2.2.3 accept any offer or counter-offer made by the Purchaser.
4.3 Upon any latent defect becoming discoverable within 12 months from purchase of the Goods by the Purchaser, the Purchaser shall have the right to report this latent defect to the Seller as soon as reasonably possible, in order for the Seller to be able to issue a credit invoice or to repair or replace the Goods in accordance with Clause 3.8.
Because the potential losses which the Purchaser may suffer as a result of any breach of contract by the Seller are more readily ascertainable by the Purchaser, and because any such losses could be disproportionate to the Price, and so that the Seller can keep the contract price as low as possible, the parties agree that the Seller limits its liability as follows:
4.4 Where any valid claim in respect of any of the Goods which is based on any defect in quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with the terms of this Contract, the Seller shall repair and/or replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Purchaser the Price (or the proportionate part of the Price), but the Seller shall have no further liability to the Purchaser.
4.5 The Seller shall not be liable for any consequential or indirect loss suffered by the Purchaser whether this loss arises from breach of duty in a contract or tort or in any other way (including loss arising from the Seller’s negligence). Non-exhaustive illustrations of consequential or indirect loss would be:
4.5.1 Loss of profits, revenue, savings, goodwill or data or any indirect, special consequential loss, damage, costs, other claims arising out of or in connection with the supply of the goods (including and delay in supplying or any failure to supply the goods) or their use or resale, and the Sellers entire liability shall not exceed the price of the goods;
4.5.2 Loss of contracts;
4.5.3 Loss arising from improper installation of the Goods;
4.5.4 Loss arising from ancillary products or any other construction matters which affect the proper use of the Goods. Such ancillary products include, but are not limited to, the use of non-compliant fuse cables, voltage, plumbing, pipe-work, or room temperature.
4.5.5 Damage to property of the Purchaser or anyone else; and
4.5.6 Personal injury to the Purchaser or anyone else (but only so far as such injury is not caused by the Seller’s negligence).
4.6 The Seller shall not be liable for any failure to deliver the Goods arising from circumstances outside the Seller’s control.
4.6.1 Non-exhaustive illustrations of circumstances outside the Seller’s control include act of God, war riots, explosion, abnormal weather conditions, fire, flood, Government action, strikes, lockouts, delay by suppliers, accidents and shortage of materials, labour or manufacturing facilities.
4.6.2 If the Seller is prevented from delivering in the above circumstances, it shall notify the Purchaser of the fact in writing within 10 days commencing with [delivery date].
4.6.3 If the circumstances preventing delivery are still continuing [120 days] from and including the date when the Seller sends notice in accordance with Clause 15.2, then either party may give written notice to the other cancelling the Contract. Any notice cancelling the contract must be received whilst the circumstances are still continuing.
4.6.4 If the Contract is cancelled in this way, the Seller shall refund any payment which the Purchaser has already made on account of the Price (subject to deduction of any amount which the Seller is entitled to claim from the Purchaser) but the Seller shall have no liability to compensate the Purchaser for any further loss or damage caused by the failure to deliver.
4.7 Nothing in these conditions excludes or limits the Seller’s liability:
4.7.1 for death or personal injury caused by the Seller’s negligence; or
4.7.2 for any matter which it would be illegal for the Seller to exclude or attempt to exclude liability for; or
4.7.3 for fraud or fraudulent misrepresentation.
4.9 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
5 DELIVERY
5.1 The Seller reserves the right to refuse your order for any reason.
5.2 From moment of receipt of order, the Seller shall use best endeavours to deliver within 28 days, but shall not be obliged to do so. For the purpose of this, time shall not be of the essence. In any event, the Seller accepts no liability for late delivery or pick-up.
5.3 Time will only be of the essence with regard to specific tailor made orders if this is agreed between the parties.
5.4 If the Purchaser wishes to arrange delivery and collection of the Goods from the Seller’s point of despatch, the Purchaser will have the opportunity of doing so (at the Purchaser’s own risk) providing the Seller is adequately informed of this decision. If the Purchaser does not wish to arrange for delivery itself, then the Goods shall be delivered, carriage paid, to the Purchaser’s place of business or to such other place of delivery as is agreed by the Purchaser in writing prior to the delivery of the Goods by the Seller. Nonetheless, in the event that the Goods are offloaded by the Purchaser then this shall be done at the risk of the Purchaser.
5.5 The Seller shall invoice the Purchaser upon, but separately from, despatch of the Goods to the Purchaser.
5.6 The Seller shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the Order number, date of order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
5.7 Unless otherwise stipulated by the Purchaser in the Order, deliveries shall only be accepted by the Purchaser in normal business hours.
5.8 If the Seller requires the Purchaser to return any packaging material to the Seller that fact must be clearly stated on any delivery note delivered to the Purchaser and any such packaging material shall only be returned to the Seller at the cost of the Seller.
5.9 If the Goods are delivered to the Purchaser in excess of the quantities ordered the Purchaser shall not be bound to pay for the excess and the excess shall be and shall remain at the Seller’s risk and shall be returnable at the Seller’s expense within a reasonable time.
5.10 Subject to the other provisions of this contract, the Seller shall not be liable for any 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 similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Seller’s negligence), nor shall any delay entitle the Purchaser to terminate or rescind the Contract unless such delay exceeds 120 days.
5.11 The Seller’s liability for non-delivery of the Goods, when such non-delivery was as a result of circumstances within the Seller’s control, is limited to replacing the Goods within a reasonable time or issuing a credit invoice at the pro-rata Contract rate against any invoice raised for such Goods.
5.12 The Seller shall not be liable for any failure to deliver the Goods arising from circumstances outside the Purchaser’s control, as stipulated in Clause 4.7 above.
5.13 Neither party to the Contract will be able to cancel any order once the Good(s) have been dispatched.
5.14 If the Purchaser fails to take delivery of the Goods or if the Seller is unable to deliver the Goods on time because the Purchaser has not provided adequate delivery instructions:
5.14.1 risk in the Goods shall pass to the Purchaser (including for loss or damage caused by our negligence);
5.14.2 the Goods shall be deemed to have been delivered; and
5.14.3 the Seller has the right to store the Goods until delivery, whereupon the Purchaser shall be liable for all related costs and expenses (including, without limitation, delivery, storage and insurance).
6. RISK/PROPERTY
6.1 The Goods shall remain at the risk of the Seller until delivery to the Purchaser is complete.
6.2 Legal ownership to the Goods remains with the Seller and will not pass to the Purchaser until one of the following events occurs:
6.2.1 the Seller is paid for all of the Goods and no other amounts are owed by the Purchaser to the Seller in respect of other goods supplied by the Seller; or
6.2.2 the Purchaser sells the Goods in accordance with these Conditions in which case ownership of the Goods will pass to the Purchaser immediately before the Goods are delivered to the Purchaser’s customer.
6.3 Where the Goods are attached to or incorporated in other goods or are altered by the Purchaser, ownership of the Goods shall not pass to the Purchaser by virtue of the attachment, incorporation or alteration if the Goods remain identifiable and, where attached to or incorporated in other goods, can be detached or removed from them.
6.4 The Purchaser must maintain the Goods in satisfactory condition and store the Goods separately from any other goods until one of the following events occurs:
6.4.1 they become the Purchaser’s property;
6.4.2 they are attached to or incorporated in other goods; or
6.4.3 they are delivered to a purchaser from the Purchaser.
6.5 If the Purchaser is overdue in paying for the Goods or any other goods supplied by the Seller, the Seller may, if still the legal owner of the Goods:
6.5.1 retake, sell or otherwise deal with and/or dispose of all or any part of the Goods; and
6.5.2 the Seller and its agents and employees shall be entitled at any time and without the need to give notice enter upon any property upon which the Goods or any part are stored, or upon which the Seller reasonably believes them to be kept.
6.6 Irrespective of whether title to the Goods remains vested in the Seller, risk in the Goods shall pass to the Purchaser upon delivery.
6.7 Until the Purchaser has paid the Seller for the Goods and all other goods which the Seller has supplied to the Purchaser:
6.7.1 any sale of the Goods shall be effected in the ordinary course of the Purchaser’s business and at full market value;
6.7.2 if the Purchaser sells the Goods, the Purchaser shall hold the proceeds of sale on trust for the Seller in a separate bank account;
6.7.3 the Seller may trace the proceeds of sale that the Purchaser receives into any bank or other account which the Purchaser maintains;
6.7.4 if the Purchaser sells the Goods, the Seller may, by written demand, require the Purchaser to assign to the Seller the Purchaser’s rights to recover the Price from its purchaser;
6.7.5 the Purchaser must not assign to any other person any rights arising from a sale of the Goods without the Seller’s written consent; and
6.7.6 the Purchaser must not encumber, or in any way charge any of the Goods.
6.8 The Purchaser must insure the Goods against all insurable risks for the price due to the Seller for the Goods. If the Goods are destroyed by an insured risk before the Purchaser has paid for them, the Purchaser shall hold the insurance proceeds as the Seller’s trustee.
6.9 Where the Seller is unable to determine whether any Goods are the goods in respect of which the Purchaser’s right to possession has terminated, the Purchaser shall be deemed to have sold all goods of the kind sold by the Seller to the Purchaser in the order in which they were invoiced to the Purchaser.
7. PRICE
7.1 The Price to pay is the Seller’s quoted Price for the Goods. If no Price has been quoted, it is the Price given for the Goods in the Seller’s price list effective at the date the order is accepted – excluding cases of obvious error.
7.2 Unless otherwise stated, prices in any quotation or given in the Seller’s price lists do not include any charge for handling or delivering the Goods.
7.3 If the Seller incurs any costs (including storage charges) as a result of the Purchaser’s neglect or default, the Purchaser must pay those costs in addition to the Price.
7.4 Where at any time before delivery of the Goods:
7.4.1 There is an increase in the cost of:
7.4.1.1 Raw materials; or
7.4.1.2 Labour or services; or
7.4.2 There are any currency fluctuations increasing the cost of raw materials; or
7.4.3 The Goods have been incorrectly priced and the Consumer has been notified of this;
The Seller may adjust the price accordingly.
7.5 Unless otherwise stated, all prices quoted or given in the Seller’s price list are exclusive of VAT.
8. PAYMENT
8.1 The Purchaser shall pay the price of the goods within the timeframe as specified by the Seller at the time of the Purchaser placing the order with the seller. For the purposes of this agreement, whatever time for payment is agreed between the parties, the time for payment shall always be of the essence
8.2 The Seller reserves the right to charge interest at 5 per centum above the Bank of England Base Rate per annum on all overdue accounts. Interest is deemed to accrue on a day to day basis from and including the date for payment under clause 8.1 without any set off or deduction.
8.3 Payment of invoices by the Purchaser shall be treated as separate. Where a specific number of products are disputed as faulty, the Purchaser shall remain liable to pay for those items that cannot be rejected on any of the grounds permitted by this contract on a pro-rata basis.
8.4 The Purchaser shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Purchaser has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Purchaser.
8.5 If the Purchaser fails to pay the Price by the date specified;
8.5.1 the Seller may terminate the Contract and recover the Goods in accordance with Clause 6;
8.5.2 the Seller and/or the Seller’s Lender will have the right to sue the Purchaser for the amount outstanding; and
8.5.3 the Seller may suspend any further deliveries to the Purchaser.
9. CONFIDENTIALITY
9.1 The Seller shall keep in the strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Seller by the Purchaser or its agents and any other confidential information concerning the Purchaser’s business or its products which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller’s obligations to the Purchaser and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Seller.
10. TERMINATION
10.1 If the Purchaser:
10.1.1 Has a petition presented for its winding up; or
10.1.2 Passes a resolution for voluntary winding-up (other than for the purpose of a bona-fide amalgamation or reconstruction); or
10.1.3 Enters into a voluntary arrangement with its creditors; or
10.1.4 Becomes subject to an administration order; or
10.1.5 Has a receiver appointed of all or any of its assets; or
10.1.6 Being an individual or firm,
10.1.6.1 Becomes bankrupt or insolvent; or
10.1.6.2 Enters into a voluntary arrangement with creditors,
Then the Seller shall be entitled to treat the Contract as being at an end or suspend any further deliveries under the Contract. If the Goods have been delivered but not paid for, the Price shall become due immediately regardless of any previous agreement to the contrary. This will not affect the Seller’s rights to deal with the goods as considered under Clause 6.
11. ASSIGNMENT
11.1 The Purchaser cannot assign, charge or sub-contract the Contract, or any part of it, without the Seller’s prior written consent.
11.2 The Seller may transfer, assign, charge, sub-contract or otherwise dispose of a Contract, or any of its rights or obligations arising under it, at any time during the term of the Contract.
12. FORCE MAJEURE
12.1 Both the Seller and the Purchaser reserve the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of Goods ordered if either party is respectively prevented from or delayed in the carrying on of their business due to circumstances beyond their reasonable control, including, and without limitation, to acts of God, governmental actions, war or national emergency, acts of terrorism, protests, 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.
13. WAIVER
13.1 If the Seller fails, at any time during the term of a Contract, to insist upon strict performance of any of the Purchaser’s obligations under the Contract or any of these terms and conditions, or if the Seller fails to exercise any of the rights or remedies to which the Seller is entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve the Purchaser from compliance with such obligations.
13.2 A waiver by the Seller of any default shall not constitute a waiver of any subsequent default by the Purchaser.
13.3 No waiver by the Seller of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the Purchaser in writing.
13.4 Failure or delay by the Purchaser in enforcing or partially enforcing any provisions of the Contract shall be constructed as a waiver of any of its rights under the Contract.
14.1 The Seller has the right to revise and amend these terms and conditions from time to time [to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system's capabilities].
14.2 The Purchaser will be subject to the policies and terms and conditions in force at the time that the Purchaser orders products from the Seller, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by the Purchaser), or if the Seller notifies the Purchaser of the change to those policies or these terms and conditions before the Seller sends the Purchaser the Goods ordered (in which case the Seller has the right to assume that the Purchaser has accepted the change to the terms and conditions, unless the Purchaser notifies the Seller to the contrary within seven working days of the Purchaser receiving the Goods).
15. GENERAL
15.1 If any provision of the Contract 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 provisions of the Contract and the remainder of such provision shall continue in full force and effect.
15.2 Any notice which must be given under these Conditions may be either delivered personally or posted.
15.2.1 Notice given by post must be pre-paid and correctly addressed:
15.2.1.1 SP Heating Ltd at Unit A station rd, Didcot industrial estate , OX11 7LW, Didcot , Oxfordshire, United Kingdom
15.2.1.2 in any other case, to the recipient’s address as set out in these Conditions (unless the recipient has notified another address to the other parties to these Conditions in accordance with this clause, in which case, to the notified address).
15.2.2 A posted notice which complies with the sub-clause 15.4.1 above is deemed served:
15.2.2.1 when posted on a business day, on the second business day after the day of posting; and
15.4.2.2 in any other case, on the third business day after the day of posting.
15.3 The parties to the Contract confirm that they intend to allow the Seller to pass on to the Seller’s Lender any of its collection rights for any unpaid and outstanding sums due from the Purchaser, providing the Seller informs the Purchaser of this in writing. Therefore, for these purposes alone, the Contracts (Rights of Third Parties) Act 1999 shall be applicable.
15.4 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit exclusive jurisdiction to the English courts.