TERMS AND CONDITIONS OF SALE
1.1 In these conditions:
“Buyer” means the person whose order is accepted by the Seller or the person who accepts a quotation of the Seller.
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the seller.
“Goods” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions.
“Seller” means WSG Interior Systems Ltd, Company Number 07464399
“Intellectual Property” means all intellectual property rights of any kind existing anywhere in the world whether or not registered and all applications, renewals and extensions of the same including, without limitation, copyright, database rights, rights in computer software, design rights, patents, trade marks, service marks, trade names and other rights in goodwill, rights in know-how, trade secrets and other confidential information. Customer acknowledges that all Intellectual Property in and relating to the Goods and Services (including but not limited to any software, and any improved, updated, modified or additional parts thereof and/or any documentation associated with the Goods and/or Services) are owned by and shall remain the property of Company and/or its licensors.
1.2 Any reference in these conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings of these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the Sale and Orders
2.1 The Conditions, shall represent the entire agreement between the Seller and the Buyer to the exclusion of all other purported terms and conditions which the Buyer may seek to impose upon the Seller whether on its documentation or otherwise.
2.2 No variation of these Conditions shall be binding unless agreed in writing to an authorised representative of the Buyer and the Seller. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in any contract made under these Conditions. Nothing in these Conditions shall exclude or limit the Seller’s liability for fraudulent misrepresentation.
2.3 Each order or acceptance of a quotation for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy Goods subject to these Conditions.
2.4 No order placed by the Buyer shall be deemed to be accepted by the Seller until a written “Acknowledgement of Order” is issued by the Seller or (if earlier) when the Goods ordered by the Buyer have been despatched by the Seller.
2.5 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.6 Any quotation is given on the basis that no contract shall come into existence until the Seller despatches an Acknowledgement of Order to the Buyer. Any quotation is valid for a period of 7 days only from its date, provided that the Seller has not previously withdrawn it, after which prices and terms are subject to revision by the Seller without notice.
2.7 Unilateral cancellation of any contract made under these Conditions by the Buyer shall not be permissible and any such purported cancellation shall constitute a breach of contract and the Buyer shall indemnify the Seller in full against all loss (including loss of profit) costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation.
3.1 Unless otherwise agreed in writing by the authorised representatives of the Buyer and the Seller all specifications and particulars of dimensions submitted with such specifications are approximate only. All samples, drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions
or illustrations contained in the Seller’s catalogues, brochures or price lists, and other advertisement matter are issued or published for the sole purpose of giving an approximate idea of the Goods described in them and none of these shall form part of any contact. This is not a sale by sample.
3.2 The Seller reserves the right to amend the specifications of the Goods or to substitute any part of the Goods for goods of a similar specification at any time and without notice (whether to conform with any applicable safety or other statutory requirement or otherwise) provided that such change does not materially affect their quality or performance.
3.3 The Buyer shall determine that all goods are suitable for contemplated use whether or not such is known to the Seller. The Seller shall not be liable for any technical advice furnished by its representatives or agents to the Buyer.
4.1 Unless otherwise agreed by the Seller in writing, the price of the Goods shall be determined by reference to the Seller’s price list current at the date of despatch of the Goods. All prices quoted on such price list are exclusive of value added tax. All costs and/or charges in relation to loading, unloading, carriage and any insurance shall where applicable be additional to the price of the Goods. These additional costs shall be paid by the Buyer when it is due to pay for the Goods.
5.1 Dates and periods quoted by the Seller or detailed on the Acknowledgement of Order for performance, despatch or delivery of goods are intended to be estimates only and time for delivery shall not be of the essence of any contract made under these Conditions.
5.2 Subject to the other provisions of these Conditions, 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 Buyer to terminate or rescind any contract made under these Conditions unless such delay exceeds 90 days.
5.3 Unless otherwise agreed in writing by the Seller, delivery of the Goods shall take place at the Buyer’s place of business.
5.4 Unless otherwise agreed in writing between the authorised representatives of the Buyer and the Seller:
5.4.1 all packing materials are included in the contract price. The manner of packing shall be at the Seller’s discretion. No liability will be accepted for failure to pack to any particular standard or against any particular risks unless the requirements for such packing is specifically brought to the Seller’s attention, accepted by the Sellers and paid for by the Buyer; and
5.4.2 delivery shall be effected by means of carriers organised by the Seller at it’s discretion.
5.5 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat any other contract or instalment as cancelled or repudiated. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the contract.
5.6 The Seller shall not be liable for any non-delivery of Goods (even if caused by the Seller’s negligence) unless the Buyer gives written notice to the Seller of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been received. Any liability of the Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Goods.
5.7 The quantity of any consignment of Goods as recorded by the Seller on despatch from the Seller’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.8 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for the delivery then without prejudice to any other right or remedy available to the Seller, the Seller may;
5.8.1 charge the Buyer for the amount of any costs incurred by the Seller as a result of such non-delivery or inadequate delivery instructions which the Buyer shall be obliged to pay forthwith at the request of the Sellers;
5.8.2 store the Goods until actual delivery and charge the Buyer for the reasonable costs of storage;
5.8.3 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the contract or charge the Buyer for any shortfall below the price under the contract.
6. Refunds and Credits
6.1 Unless otherwise specifically agreed in advance by the Seller no refund or credit will be given by the Seller in respect of any of the Goods returned save as the Seller may elect to make pursuant to clauses 11.4 to 11.6.
7.1 A non-refundable deposit shall be payable to the Seller if so stated on the Acknowledgement of Order or on a quotation of the Seller which is accepted by the Buyer (as appropriate). Such deposit shall be paid within the period specified on the Acknowledgement of Order or on the quotation ( as appropriate) and no binding contract shall come into existence until an Acknowledgment of Order has been issued by the Seller and cleared funds have been received to the amount of such deposit by the Seller.
7.2 The deposit shall not be refundable under any circumstances whatsoever.
7.3 Any deposit paid shall be treated as part payment for the price due under Clause 8 below.
8.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods and carriage thereof on or at any time after despatch or delivery of the Goods. Where the Goods are to be collected by the Buyer the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after collection by the Buyer of the Goods. Where the Buyer wrongfully fails to take delivery of the Goods the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
8.2 The Buyer shall pay the price of the Goods and carriage thereof before the due date specified on the Seller’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the contact. Receipts for payment will be issued only upon request. No payment shall be deemed to have been received until the Seller has received cleared funds.
8.3 If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
8.3.1 cancel the contact or suspend any further deliveries to the Buyer;
8.3.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contact between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer);
8.3.3 charge the Buyer the amount of any costs incurred by the Seller in pursuing such non-payment; and
8.3.4 charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 4 per cent annum above Yorkshire Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
8.4 No claim by the Buyer under warranty or otherwise shall entitle the Buyer to any deduction, retention or withholding of any part of any sums due for payment hereunder. The Buyer shall not be entitled to any set-off of obligations pursuant to any contact with the Seller.
8.5 All payments shall be made in pounds sterling (£UK).
8.6 All payments payable to the Seller under any contract made under these Conditions shall become due immediately on its termination despite any other provision.
9. Risk and Property
9.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
9.1.1 in the case of Goods to be delivered at the Seller’s premises at the time when the Seller notifies the Buyer that the Goods are available for collection; or
9.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, at the time when the Seller has tendered delivery of the Goods.
9.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, ownership of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full all sums due to it in respect of: (a) the Goods; and (b) all other sums which are or which become due to the Seller from the Buyer on any account.
9.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
9.3.1 hold the Goods on a fiduciary basis as the Seller’s bailee;
9.3.2 store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property;
9.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
9.3.4 maintain the Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller.
9.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
9.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and the Buyer shall hold such part of the proceeds of sale as represent the amount owned by the Buyer to the Seller on behalf of the Seller and the Buyer shall account to the Seller accordingly;
9.4.2 any such sale shall be a sale of the Seller’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
9.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
9.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
9.5.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under any Contract made under these Conditions or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
9.5.3 the Buyer encumbers or in any way charges any of the Goods.
9.6 The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
9.7 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises (including the Buyer’s premises or any third party premises) where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
9.8 Where the Seller is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.
9.9 On termination of any contract made under these Conditions, howsoever caused, the Seller’s (but not the Buyer’s) rights contained in this condition 9 shall remain in effect.
9.10 The Buyer shall not be entitled to pledge or in any way change by way of security for any indebtedness of any of the Goods which remain the property of the Seller but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
9.11 Immediately upon on the Seller’s request, the Buyer shall assign to the Seller the right to receive any and all monies otherwise receivable by the Buyer from its customers for or in connection with the Goods and provide the Seller with all such assistance that the Seller shall reasonably require to collect such monies.
10. Insolvency of Buyer
10.1 This clause applies if:
10.1.1. the Buyer make any voluntary arrangement with its creditors or becomes subject to an administration offer or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrance takes possession, or a received is appointed, of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Seller reasonable apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel any contract made under these Conditions or suspend any further deliveries under the contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement of arrangement to the contrary.
11. Warranties and Liabilities
11.1 All conditions, guarantees or warranties, (whether express or implied by statute or common law) which may lawfully excluded are hereby to the fullest extent excluded from any contract made under these Conditions.
11.2 Nothing in this Agreement shall exclude or restrict the liability of the Seller in respect of Goods supplied within the United Kingdom from personal injury or death resulting from negligence of the Seller in the performance of his obligations under the contract.
11.3 Save as set out in clauses 11.4 to 11.6 neither the Seller nor its authorised representatives or agents shall be under any liability whatsoever in respect of any loss, damage or expense arising, whether directly or indirectly:
11.3.1 from any use made or resale by the Buyer of any of the goods or any product incorporating the Goods or any defect which may be found to exist in any of the Goods; or
11.3.2 for late delivery of such goods;
11.3.3 or for any breach or failure to perform any obligations under any contact made under these Conditions by the Seller.
11.4 An authorised representative of the Buyer shall examine the Goods on delivery and in the event that any of the Goods prove to be defective and/or there is proved to be any shortfall in the Goods and in either case detailed notice of such defect or shortfall shall be given to the Seller and the carriers of the Goods on the delivery note accompanying the Goods which shall be signed by a fully authorised representative of the Buyer.
11.5 In the event that an authorised representative of the Buyer examines the Goods on delivery and signs the delivery note accompanying the Goods but fails to notice any defect or shortfall in the Goods, detailed notice of any such defect or shortfall shall be given in writing to the Seller and the Carriers of the Goods within 7 working days of the date of delivery of the Goods.
11.6 In the event of non-delivery of the Goods, detailed notice of non-delivery shall be given in writing to the Seller and the carriers of the Goods within 7 days of the date of invoice in respect of the same.
11.7 In any of the above cases contained in clauses 11.4 to 11.6 the Seller’s entire liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of any contract made under these Conditions shall be to replace or refund or waive payment for the Goods as it may elect, subject always to a limit of the agreed price for the Goods PROVIDED ALWAYS that the Seller shall be under no liability to the extent such defects occur as a result of some act or omission of the Buyer.
11.8 In the event that any liability for loss damage or injury is imposed upon the Seller by virtue of any statute or the common law (other than a liability accepted by the Seller in clauses 11.4 to 11.6 (insofar as may be permitted by law) the Buyer shall indemnify the Seller to the full extent of any such liability including, without limitations, any costs incurred by the Seller in relation to the liability (save insofar as such liability results directly from a reckless or negligent act of the Seller).
12. Acts Outside the Seller’s Control
12.1 In no event shall the Seller be liable under the contract for any failure or delay in performing any of its obligations under any contact to the extent that such failure or delay is caused by occurrences beyond its reasonable control to including, without limitation, acts of God, governmental acts fire, riot, or industrial disputes, no matter where these occur.
13. Intellectual Property
13.1 Customer acknowledges that all Intellectual Property in and relating to the Goods (including but not limited to all design concepts and know how and associated drawings and documentation associated with the Goods) and not originally supplied by the Buyer are owned by and shall remain the property of Seller and/or its licensors and the Buyer shall take no steps which may challenge or endanger such proprietor rights of the Seller or any such third party owner.
13.2 The Buyer warrants that any design or instruction furnished or given by the Buyer to the Seller shall not be such as will cause the Seller to infringe any third party Intellectual Property Right in the execution of any contract. Buyer indemnifies the Seller to the full extent of any liability (including against all costs, claims, expenses, damages, charges or liabilities whatsoever) which may be incurred by the Seller by reason of any breach of this warranty.
13.3 The Buyer shall not use the Seller’s name, logo, or any other identification marks for the purpose of advertising or publicity without the Seller’s prior written consent.
13.4 Customer shall not copy, modify, adapt, develop, create any derivative work, reverse engineer, trace, decompile, or disassemble the Goods or any part thereof or carry out any act otherwise restricted by copyright or other Intellectual Property rights.
13.5 Nothing in these Conditions shall be construed as a representation or warranty by Company that the design, manufacture, use, sale or supply of Goods is not an infringement of any valid or subsisting patent or other intellectual property of third parties.
14.1 These Conditions represent the entire agreement between the parties and supersedes all earlier warranties representations or statements (whether oral or in writing) and may only be varied or amended in writing between authorised representatives by the Buyer and the Seller.
14.2 The failure of the Seller to exercise or enforce any rights conferred hereunder shall not be deemed to be a waiver of any such right not operate so as to bar the exercise or enforcement of it at any time or times.
14.3 Any contract made hereunder and all matters concerning disputes arising out of or in connection with them or its subject matter shall in all respects be governed by and construed in accordance with English Law. The parties hereto agree to submit to the exclusive jurisdiction of the English courts save in respect to enforcement where the jurisdiction shall be non-exclusive.
14.4 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office of principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Proof that an envelope containing such notice was properly addressed prepaid and posted first class shall be conclusive evidence that such notice was given. Such posted notice shall be deemed to have been served forty-eight hours after it is proved to have been put in the post properly addressed.
14.5 If any provision of these Conditions is held by any competent authority to be illegal, invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
14.6 A person who is not a party to these Conditions or any contract made hereunder may not enforce any of them under the Contracts (Rights of Third Parties) Act 1999.
14.7 Seller may assign any contract made under these Conditions or any part of it to any person, firm or company. Customer shall not be entitled to assign any contract made hereunder or any part of it without the prior written consent of Seller.
14.8 Seller shall not be liable for non-performance in whole or in part of its obligations if this is attributable to any cause beyond the control of the Seller including (without limitation) any act of God, force majeure, war, civil war or disturbance, rebellion, embargo, strike, labour dispute, illness, flood, fire, tempest, sabotage or government regulation or shortage of materials.
14.9 If any contract made under these Conditions or any part thereof shall become impossible of performance or otherwise frustrated, Seller shall be entitled to reasonable remuneration for any work done up to the date of such impossibility or frustration due credit being given for any amounts in respect of the contract or Order paid by the Customer.
The Directors/Proprietors of the Buyer hereby agree to abide strictly by these Conditions and jointly and severely accept liability for and guarantee payment of any debts and liabilities of the Buyer to the Seller.