1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this condition shall apply in these conditions.
Buyer: the person, firm or company who purchases the Goods from the Seller;
Combined Goods: any Goods which have been joined or connected in any way to other goods by or on behalf of the Buyer in such a way that the Goods are nevertheless readily identifiable and removable;
Commercial Unit: a unit of Goods, the division of which would materially impair the value of the Goods or the character of the unit;
Conditions: these Terms and Conditions of Sale;
Confidential Information: any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential, or the information could reasonably be supposed to be confidential;
Contract: any contract between the Seller and the Buyer for the sale of Goods, incorporating these Conditions;
Goods: any goods agreed in the Contract to be sold by the Seller to the Buyer (including any part or parts of them);
Incorporated Goods: any Goods which have been incorporated into other goods by or on behalf of the Buyer in such a way that the Goods are not readily identifiable and removable;
Input Material: any documents, plans, drawings, patterns, designs or other materials, and any instructions, specification, data or other information provided by the Buyer to the Seller relating to the Goods;
Intellectual Property Rights: any patent, registered design, copyright, database right, design right, topography right, trade or service mark, trade or business name, domain name, trade secret, know-how and right of confidence and any other intellectual property right of any nature, in all cases whether or not registered or registrable in any country, for the full term of such rights, including any extension or renewal of the terms of such rights and including registrations and applications for registration of any of such rights anywhere in the world;
Output Material: any documents plans, drawings, patterns, designs or other materials, and any data or other information provided by the Seller to the Buyer relating to the Goods;
Seller: Interclamp Europe Ltd;
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 Any reference to "parties" means the parties to the Contract and "party" shall be construed accordingly.
1.4 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms.
1.5 Words in the singular include the plural and in the plural include the singular.
1.6 A reference to one gender includes a reference to the other gender.
1.7 Condition headings do not affect the interpretation of these Conditions.
1.8 These Conditions shall apply both to Buyers who are
(a) business customers; and
save where otherwise stated.
1.9 A Buyer is a business customer if the Buyer contracts with the Seller for the purposes of the Buyer’s business, trade or profession. All other Buyers are consumers. Nothing in these Conditions affects the Buyer’s statutory rights as a consumer.
1.10 Any Buyer wishing to purchase Goods listed on the Seller’s website at a distance is hereby referred to Condition 14 of these Conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under Condition 2.3, the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document and including any terms and conditions which may be implied by custom, practice or course of dealing).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to the sale of all Goods by the Seller and any variation to these Conditions and any representations about or related to the Goods shall have no effect unless expressly agreed in writing and signed by a duly authorised director or officer of 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 the Contract. Nothing in this Condition 2.3 shall exclude or limit the Seller's liability for fraudulent misrepresentation.
2.4 Each written purchase 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 purchase Goods subject to these Conditions.
2.5 No order placed by the Buyer shall bind the Seller until the Buyer’s order has been accepted by the Seller in writing and the written acceptance has been signed by the Seller’s authorised representative.
2.6 Any quotation is given on the basis that no Contract shall come into existence until the Seller has accepted the Buyer’s order pursuant to Condition 2.5 above. Any quotation is valid for a period of 30 days only from its date (unless otherwise specified), provided that the Seller has not previously withdrawn it.
2.7 No order placed by the Buyer may be cancelled, varied, or deferred by the Buyer, (in whole or in part) except with the agreement in writing of the Seller and on terms that 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), charges and expenses incurred by the Seller as a result of such cancellation, variation or deferment.
3.1 The quantity and description of the Goods shall be as set out in the Seller's acceptance of the Buyer’s order issued pursuant to Condition 2.5.
3.2 Although reasonable precautions will be taken by the Seller to ensure the accuracy of such information, all descriptive matter, weights, dimensions, and performance data supplied by the Seller and any descriptions and illustrations contained in the Seller’s data sheets, technical bulletins, catalogues, price lists, website and other advertising matter are approximate only and are intended merely to convey a general description of the Goods; they are not (unless it is expressly so stated in the Contract) deemed to form any part of any Contract and are not to be regarded as a warranty or representation.
3.3 The Buyer shall be responsible to the Seller for ensuring the accuracy and completeness of the terms of any order submitted by the Buyer and for giving the Seller all necessary information relating to the Goods within a sufficient time to enable the Seller to fulfil its obligations under the Contract.
3.4 All Input Material held by the Seller on behalf of the Buyer shall be held at the Buyer’s risk and expense and the Buyer shall insure the same against all risks whilst it is in the Seller’s possession.
3.5 The Seller reserves the right at its sole discretion to reject any Input Material which appears to the Seller to be unsuitable for the purposes of fulfilling its obligations under the Contract or which does not conform to specification. Notwithstanding the foregoing, the Seller shall have no responsibility for checking the suitability, accuracy or completeness of any Input Material. No responsibility is accepted by the Seller for imperfect work or delays in delivery due to any Input Material being defective, unsuitable, inaccurate, incomplete, or untimely.
3.6 The Buyer warrants that any Input Material submitted by the Buyer shall not cause the Seller to infringe any Intellectual Property Rights of any other person. The Buyer shall hold the Seller harmless and shall fully indemnify the Seller against any and all loss, damage, costs and expenses awarded against or incurred by the Seller in connection with, or paid or agreed to be paid by, the Seller, in settlement of any claim for infringement of any Intellectual Property Rights of any other person resulting from the Seller’s use of any Input Material submitted by the Buyer.
3.7 The Buyer warrants that any Input Material submitted by the Buyer shall not contravene any applicable safety or other statutory or regulatory requirement. The Buyer shall hold the Seller harmless and shall fully indemnify the Seller against any and all loss, damage, costs and expenses awarded against or incurred by the Seller as a result of any breach of this warranty.
3.8 The Seller may effect minor modifications to the specification of the Goods without the Buyer’s approval in order to comply with any applicable safety or statutory requirements, or to effect enhancements to the Goods. The Seller will notify the Buyer in writing of any proposed material modifications to the specification of the Goods and the Buyer shall be deemed to have accepted such modifications unless notice in writing to the contrary shall be received by the Seller within 3 days of the date of the Seller’s notice to the Buyer.
3.9 All Goods shall be supplied by the Seller to any standard commercial tolerances that apply within the appropriate industry, unless the Buyer notifies the Seller in its order of any special tolerances that the Buyer requires.
3.10 The Buyer acknowledges that, where the Goods are supplied as a replacement for other goods (whether those other goods were supplied by the Seller or a third party), the Goods supplied may not match the goods to be replaced in either appearance or quality.
3.11 Subject to the provisions of Condition 9.2 (b), the Buyer shall be solely responsible for ensuring the suitability of any Goods for any specific purpose.
3.12 Subject to the provisions of Condition 9.2 (c), the Buyer shall be solely responsible for ensuring the suitability of any Goods for use in any specific conditions.
3.13 Information and product literature regarding the conditions necessary to ensure that the Goods may be used safely and without risk (when properly used) is available from the Seller and will be furnished to the Buyer upon request.
3.14 All recommendations and advice given by or on behalf of the Seller to the Buyer as to any method of using or storing
the Goods, or the Goods’ suitability for use in any manufacturing process or in connection with any other materials, is in either case given without liability on the part of the Seller.
3.15 The Seller reserves the right to substitute other materials or components of equivalent composition, strength and quality for use in producing the Goods in any instance where any materials or components specified by the Buyer are not readily available to the Seller.
3.16 The Buyer undertakes that it will comply with and will procure that its employees, customers and every other person working with, on, or near or using the Goods shall comply in full with the instructions and recommendations made in any manual or handbook or instructions provided by the Seller or other manufacturer of the Goods and that they will comply with all other instructions given in connection with the use of the Goods.
3.17 The Goods are designed to be used without danger to health and safety where correctly used in accordance with the relevant National or International Standard, the rating for which the Goods were designed and accepted good practice. If the Buyer intends to use the Goods under unusual conditions (especially if special risks to health and safety are posed), it shall be the sole responsibility of the Buyer to ensure the safe use of the Goods in such circumstances.
4.1 Unless otherwise agreed in writing by the Seller, delivery of the Goods shall take place at the Seller’s place of business. The Buyer shall be responsible for arranging for the carriage of the Goods to the destination address.
4.2 All packing cases, skids, drums and other packing materials provided by the Seller must be returned to the Seller’s place of business at the Buyer’s expense and in good condition within 30 days from the date of receipt. If not so returned they may be charged for.
4.3 The cost of any pallets provided by the Seller for use in the transportation of the Goods is not included in the Contract price and the pallets shall remain the property of the Seller at all times. The Buyer must arrange for the pallets to be returned within 30 days from receipt (in the same condition as received by the Buyer) to the Seller’s place of business at the Buyer’s expense and the Seller reserves the right to charge the Buyer for the full replacement value of any pallets not so returned.
4.4 Subject to Condition 4.7, any dates specified by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.5 Delivery dates and periods shall be extended as necessary if any delay in delivery is caused as set out in Condition 7.3 of these Conditions or due to any other circumstances beyond the control of the Seller. If any such delay causes the Seller to revise agreed production schedules delivery will (subject to these Conditions) be in accordance with such revised schedules which will be notified to the Buyer.
4.6 The Buyer may request earlier delivery dates than those originally agreed and the Seller will at their discretion endeavour to accommodate such requests providing that sufficient notice is given. Any additional costs associated with achieving an earlier delivery date will be for the Buyer's sole account.
4.7 If a fixed time is quoted in writing by the Seller for delivery, and the Seller fails to deliver the Goods within that time or within any extension thereof provided by Condition 4.5, and if as a result the Buyer shall have suffered loss, the Seller undertakes to pay for each week or part of a week of delay, liquidated damages at the rate of 0.25% up to a maximum
of 5% (or any other percentage specifically stated in the Seller’s quotation) of that portion of the price identified in the Contract which is referable to such portion only of the Goods as cannot in consequence of the delay be used commercially and effectively. Such payment of liquidated damages pursuant to this Condition 4.7 shall be in full satisfaction of the Seller’s liability for delay.
4.8 Subject to Condition 4.7, 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 the Contract unless such delay exceeds 180 days.
4.9 The Buyer must examine the Goods upon delivery and within 7 days thereafter notify the Seller in writing of any defects. In default the Buyer will be deemed to have examined and accepted the Goods. Where the Contract is for the sale of Goods making up one or more Commercial Units, the Buyer accepting any Goods included in a Commercial Unit shall be deemed to have accepted all of the Goods making up the Commercial Unit.
4.10 If for any reason the Buyer fails to take or accept delivery of any or all of the Goods, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Seller's negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) the Seller may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including storage and insurance); or
(d) sell the Goods at the best price readily obtainable and (after deducting any reasonable costs and expenses in connection with the storage and expedited sale of the Goods), charge the Buyer for any shortfall below the price for the Goods.
4.11 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.12 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
4.13 Without prejudice to the provisions of Condition 4.10, the Seller reserves the right to charge for the storage of Goods at such rate as shall be agreed with the Buyer, if:
(a) the Buyer requests that its order be put on hold; or
(b) if any Goods are held by the Seller (through no fault of the Seller) for any period of time beyond any date specified by the Seller for the delivery of the Goods.
5. DAMAGE IN TRANSIT AND NON-DELIVERY
5.1 No claim for loss or damage in transit or for errors in despatch or invoicing will be accepted by the Seller unless a separate written notice is given to the carrier concerned (if any) and to the Seller within 3 days of receipt of the Goods. In the case of non-delivery a written notice must be given to the carrier concerned (if any) and to the Seller within 7 days of the invoice date.
5.2 If liability is accepted by the Seller under Condition 5.1, the Seller will repair or replace as appropriate at its sole discretion any lost or damaged Goods. The Buyer shall have no other claim and the Seller shall be under no
liability for consequential loss or damage suffered by the Buyer by reason of any delay in final delivery.
5.3 The return of any Goods which have been properly supplied under the Contract shall be subject to the Seller’s Returns Policy.
6. RISK AND TITLE
6.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
(a) in the case of Goods to be delivered at the Seller’s place of business, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
(b) in the case of Goods to be delivered other than at the Seller’s place of business, at the time of delivery of the Goods to the Buyer’s premises, or such other location as shall be notified by the Buyer to the Seller in advance of despatch of the Goods.
6.2 Title to the Goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) 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.
Conditions 6.3, 6.4, 6.5 and 6.6 shall only apply to Buyers who are business customers.
6.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Seller's bailee;
(b) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller's property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery and indemnify the Seller against all loss or damage of whatsoever nature affecting the Goods;
(e) notify the Seller immediately if it becomes subject to any of the events listed in Condition 12.1 (c) to (f) inclusive;
(f) not assign to any other person any rights arising from a sale of the Goods without the Seller’s written consent (and then only subject to a set of terms and conditions containing a Risk and Title clause which is at least as onerous as this Condition 6);
(g) not pledge or in any way charge by way of security for any indebtedness any of the Goods (and if the Buyer does so, all moneys owing by the Buyer to the Seller shall, without prejudice to any other right or remedy of the Seller, forthwith become due and payable); and
(h) give the Seller such information relating to the Goods as the Seller may require from time to time, but the Buyer may resell or use the Goods in the ordinary course of its business, provided that it shall hold the entire proceeds of any such resale upon trust for the Seller until the Goods have been paid for in full and shall keep all such trust monies in a separate bank account which shall not be overdrawn and in which such trust monies are not mingled with its own or any other monies. The Buyer acknowledges and agrees that a sale by an administrator or liquidator as part of or in connection with the sale of the assets or part of the assets of the Buyer is not in the ordinary course of the Buyer’s business.
(a) the Buyer is late in paying for the Goods; or
(b) the Buyer is late in paying for any other goods supplied by the Seller; or if
(c) before title to the Goods passes to the Buyer, the Buyer becomes subject to any of the events listed in Condition 12.1 (c) to (f) inclusive or the Seller reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then:
(d) without limiting any other right or remedy the Seller may have, the Seller may at any time require the Buyer to deliver up the Goods and, if the Buyer fails to do so promptly, the Seller may enter any premises of the Buyer or of any third party where the Goods are stored or kept in order to recover them. The Buyer shall not keep the Goods at any premises at which the Buyer does not have the right to grant access to the Seller.
6.5 With respect to any Combined Goods, the Seller shall be entitled to remove and repossess the Combined Goods pursuant to Condition 6.4 (d) regardless of the practical difficulty of so doing or any damage caused to such other goods in the course of taking all reasonable steps to effect such removal (whether such other goods belong to the Buyer or to third parties) and the Buyer waives any claim it may have against the Seller for any damage caused to its goods as a result of taking such reasonable steps and shall indemnify the Seller in full against any claim made against the Seller by any third party arising out of or in connection with such reasonable steps being taken by the Seller.
6.6 With respect to any Incorporated Goods, the Buyer shall store such Incorporated Goods separately and shall notify the Seller of the precise location and position thereof and the ownership of such Incorporated Goods and the property therein shall vest in the Seller. Upon any sale of any Incorporated Goods by the Seller, then if the proceeds of sale exceed the price or the balance of the price of the Goods due to the Seller from the Buyer, the Seller shall apply the balance of the proceeds of sale as follows:
(a) firstly, by reimbursing the Seller for the cost and expense of the taking of possession of and arranging for the sale of the Incorporated Goods and any damages which the Seller has suffered as a result of any repudiation of the Contract by the Buyer;
(b) secondly, by paying any sums due and owing to other creditors of the Buyer in respect of other items and materials used in connection with the manufacture of the Incorporated Goods where the property in such items and materials has remained vested in such other creditors by reason of effective retention of title clauses and the claims of such other creditors pursuant to such retention of title clauses have been notified to the Seller by the Buyer or its liquidator, administrator or receiver, or by such other creditors.
6.7 For the avoidance of doubt, the Buyer acknowledges that any patterns, tools, dies or moulds procured by the Seller for use in connection with the Goods and which are to be retained by the Seller to facilitate the ongoing supply of the Goods to the Buyer shall at all times remain the sole and exclusive property of the Seller.
7.1 Unless otherwise agreed by the Seller in writing, the price for the Goods shall be the price confirmed in the Seller’s acceptance of the Buyer’s order issued pursuant to Condition 2.5, but the Seller reserves the right to vary the price and to invoice the Buyer at the price ruling at the date of delivery of the Goods.
7.2 If the cost to the Seller of performing the Seller’s obligations under the Contract shall be increased by reason of the making or amendment of any law or of any order, regulation, or by-law having the force of law that shall affect
the performance of the Seller’s obligations under the Contract, the amount of such increase shall be added to the Contract price.
7.3 The Seller reserves the right, by giving notice to the Buyer, to increase the price of the Goods if the period between acceptance of the Buyer’s order and delivery of the Goods is in excess of three months, or to reflect any increase in any cost to the Seller which is due to any factor beyond the control of the Seller (including any foreign exchange fluctuation, currency regulation, imposition or alteration of taxes, duties, or other levies, any increase in transportation costs and any increase in the costs of labour, materials, fuel or other costs of production), or if there is any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or if there is any increase in any cost to the Seller which is in any other way attributable to the Buyer. Without limiting the generality of this Condition 7.3, the Seller may increase the price of the Goods to reflect any cost increase caused by any additional work involved where any Input Material is submitted late, or is found by the Seller during production to be defective, unsuitable, inaccurate or incomplete.
7.4 Unless otherwise agreed in writing by the Seller, the Contract price shall be exclusive of Value Added Tax which will be charged at the rate which is applicable at the date of delivery of the Goods.
7.5 Unless otherwise agreed in writing by the Seller, all transportation, packaging and carriage costs related to the delivery of the Goods (including the cost of all related insurance coverage and the cost of loading and unloading the Goods) shall be borne by the Buyer.
7.6 Any waiver or reduction of any price will only be applicable if agreed by the Seller in writing.
8.1 The Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after acceptance of the Buyer’s order.
8.2 Provided that the Buyer has produced references which in the Seller’s opinion are satisfactory, then settlement terms will be Net Monthly Account, unless otherwise specified in writing by the Seller. In all other cases payment shall be made in advance upon submission by the Seller of a pro-forma invoice.
8.3 The time of payment of the price shall be of the essence of the Contract.
8.4 No payment shall be deemed to have been received until the Seller has received cleared funds. In the event that the Buyer tenders payment by cheque and said cheque is returned unpaid to the Seller, the Buyer shall reimburse the Seller for any bank charges incurred by the Seller.
8.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
8.6 Any failure by the Buyer to pay the Seller any sum by the due date for payment and/or the occurrence of any one or more of the events set forth in Condition 12.1 shall entitle the Seller, at any time and without notice or liability to the Buyer and without limiting any other remedy available to the Seller under these Conditions, the Contract, or otherwise, at its option:
(a) to charge interest at the rate of five percent (5%) per annum above Lloyds Bank plc’s base lending rate from time to time calculated on a daily basis (whether before or after any judgment) until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest);
(b) to charge the Buyer with any costs incurred by the Seller in the course of collecting outstanding monies due to the Seller from the Buyer;
(c) to suspend any warranty for the Goods or any other goods supplied by the Seller to the Buyer, whether or not they have been paid for;
(d) to appropriate any payment made by the Buyer to such of the Goods as the Seller may think fit;
(e) to set off any amount owed by the Seller to the Buyer against any amount owed by the Buyer to the Seller on any account whatsoever;
(f) to terminate the Contract, or suspend or cancel the further delivery of any Goods or any other goods supplied by the Seller, including, stopping the delivery of any such Goods or goods in transit;
(g) to withdraw or reduce any agreed monthly credit limit; and
(h) to cancel any discount (if any) offered to the Buyer.
8.7 The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
8.8 All payments payable to the Seller under the Contract shall become due immediately on its termination despite any other provision.
8.9 For the avoidance of doubt, and notwithstanding the exercise of any remedy by the Seller in accordance with Condition 8.6, or under any other of these Conditions, the Contract, or otherwise, the Buyer shall remain liable to pay and shall pay the Seller at the Contract rate, any and all payments subsisting at the relevant time.
8.10 The Seller shall retain a general lien on the full value of all Goods until such Goods (together with any other goods sold to the Buyer by the Seller under any other contract) have been fully paid for.
9.1 Where the Seller is not the manufacturer of the Goods, the Seller shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller by the manufacturer (where applicable).
9.2 The Seller warrants that upon delivery (subject to the provisions of Condition 9.1):
(a) the Goods will correspond in all material respects with any specification submitted by the Buyer and shall be free from any defects in materials, workmanship and design; and
(b) if the Buyer has made it expressly known to the Seller in the Buyer’s order that the Goods shall be suitable for a particular purpose and the Seller has expressly stated in the Seller’s acceptance of the Buyer’s order issued pursuant to Condition 2.5 that it will supply Goods suitable for that purpose, then the Goods shall be reasonably fit for the purpose so stated; or
(c) if the Buyer has made it expressly known to the Seller in the Buyer’s order that the Goods shall be suitable for use in any specific conditions and the Seller has expressly stated in the Seller’s acceptance of the Buyer’s order issued pursuant to Condition 2.5 that it will supply Goods suitable for use in such conditions, then the Goods shall be reasonably suitable for use in the conditions so stated.
9.3 The Seller shall not be liable for a breach of any of the warranties in Condition 9.2 unless:
(a) the Buyer gives written notice of any defect or deficiency in the Goods to the Seller within 7 days from the delivery date of the Goods; and
(b) the Seller is given a reasonable opportunity after receiving the notice of examining the Goods and the Buyer returns such Goods to the Seller's place of business at the Seller's cost for the examination to take place there, or at the option of the Seller, the Goods are made available at the Buyer's premises for inspection by the Seller.
9.4 The Seller shall not be liable for a breach of any of the warranties in Condition 9.2 if:
(a) the Buyer makes any further use of any Goods which the Buyer has alleged to be defective after giving notice of any such defect; or
(b) the Buyer alters or repairs the Goods without the prior written consent of the Seller; or
(c) the defect arises because the Buyer failed to follow any oral or written instructions as to the storage or use of the Goods or (if there are none) good trade practice; or
(d) the defect arises from any Input Material submitted by the Buyer, or from fair wear and tear, wilful damage, negligence, abnormal or unsuitable working or storage conditions or from any misuse of the Goods, or otherwise as a result of failure of the Buyer to comply in full with any manual or handbook or instruction containing the technical specifications and operating instructions supplied by the Seller for the Goods; or
(e) the Goods have been used for an application other than that specified at the time the Buyer’s order was acknowledged, or otherwise not in accordance with the Seller’s instructions;
(f) the full price for the Goods has not been paid by the time for payment referred to in Condition 8.2; or
(g) the defect is of a type specifically excluded by the Seller by notice in writing.
9.5 Subject to Condition 9.3 and Condition 9.4, if the Goods do not conform to the applicable warranties in Condition 9.2:
(a) the Seller shall at its option:
(i) repair the Goods;
(ii) replace such Goods (or the defective part); or
(iii) issue a credit note for the Goods at the pro rata Contract rate; and
(b) the Seller shall, if it opts to replace defective Goods, then deliver replacement Goods to the Buyer (at the Seller’s expense) and ownership of the defective Goods shall, if it has vested in the Buyer, re-vest in the Seller.
9.6 For the avoidance of doubt (but without prejudice to the provisions of Condition 9.5 (a)), the failure of any part of the Goods to conform to the applicable warranties in Condition 9.2 shall only render the Seller liable to repair, replace or credit the value of that part of the Goods which is defective and shall not entitle the Buyer to cancel the remainder of the Contract.
9.7 If the Seller complies with Condition 9.5 it shall have no further liability for any breach of the applicable warranties in Condition 9.2.
10. LIMITATION OF LIABILITY
10.1 Save for any stipulation as to the Seller’s liability contained elsewhere in these Conditions, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these Conditions;
(b) any use made or resale by the Buyer of any of the Goods or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 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.
10.3 Nothing in these Conditions excludes or limits the liability of the Seller:
(a) for death or personal injury caused by the Seller's negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
10.4 Subject to Condition 10.2 and Condition 10.3:
(a) the Seller's total 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 the Contract shall be limited to the Contract price, PROVIDED THAT where the Seller’s liability is referable only to a particular portion of the Contract price, then the Seller’s total liability shall in no circumstances exceed the value of that portion of the Contract price; and
(b) the Seller shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for indirect or consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
The Buyer shall hold the Seller harmless and keep the Seller fully and promptly indemnified against all direct, indirect or consequential liabilities (all three of which terms include, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Seller as a result of or in connection with any claim made by or against the Seller in respect of any liability, loss, damage, injury, cost or expense whatsoever, howsoever and to whomsoever occurring, to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from any act or omission of the Buyer, or from the Buyer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Seller confirming such costs, charges and losses to the Buyer in writing.
12.1 The Seller shall have the right at any time by giving notice in writing to the Buyer to terminate the Contract forthwith without liability to the Buyer if:
(a) the Buyer commits a material breach of any of these Conditions and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing of the breach; or
(b) the Buyer repeatedly breaches any of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Conditions; or
(c) any distress, execution or other process is levied upon any of the assets of the Buyer, or the Buyer has a bankruptcy order made against it or makes an arrangement or composition with its 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 or manager, administrator or administrative receiver appointed over its undertaking
or any part thereof, or documents are filed with the court for the appointment of an administrator over 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
(d) any event occurs, or proceeding is taken, with respect to the Buyer under the laws of any jurisdiction to which the Buyer is subject, that has an effect equivalent or similar to any of the events or proceedings mentioned in Condition 12.1 (c); or
(e) the Buyer ceases, or threatens to cease, to carry on all or substantially the whole of its business; or
(f) the financial position of the Buyer deteriorates to such an extent that in the reasonable opinion of the Seller, the capability of the Buyer adequately to fulfil its obligations under the Contract has been placed in jeopardy.
12.2 On termination of the Contract for any reason:
(a) the Buyer shall immediately pay to the Seller all of the Seller's outstanding unpaid invoices and interest and, in respect of any Goods supplied but for which no invoice has been submitted, the Seller may submit an invoice, which shall be payable immediately on receipt;
(b) the Seller shall be relieved of its obligations under the Contract;
(c) the Seller may exercise its rights under Condition 6 hereof to recover any Goods from the Buyer's premises for which payment has not been made in full, whether or not such payment is due; and
(d) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
12.3 On termination of the Contract (however arising), Conditions 6-12, 14 and 16 shall survive and continue in full force and effect.
13. ADDITIONAL EXPORT TERMS
13.1 In these Conditions “Incoterms 2010” means the international rules for the interpretation of credit terms at the International Chamber of Commerce as in force at the date when the Contract arises. Unless the context otherwise requires, any term or expression which is defined here or given a particular meaning by the provisions of Incoterms 2010 shall have the same meaning in these Conditions.
13.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this Condition 13 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply, notwithstanding any other provisions of these Conditions.
13.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them. The Contract shall be subject to the procurement by the Buyer at the Buyer’s own expense of any import licence and any other authorisations necessarily required for the import of the Goods into the country to which the Goods are to be exported, but failure to obtain any such documents shall not entitle the Buyer to cancel the Contract.
13.4 The import licence number and expiry date shall be furnished at the time the order for the Goods is placed with the Seller, otherwise manufacture of the Goods will not be proceeded with. In the event of the import licence expiring before the Goods have been made available it shall be the responsibility of the Buyer to obtain the renewal of such licence. The Seller shall not be liable for any expense or loss caused by delay in obtaining such licence or the renewal thereof.
13.5 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered Ex Works the Seller’s place of business and the Seller shall be under no obligation to give the Buyer the notice relating to insurance mentioned under Section 32(3) of the Sale of Goods Act 1979.
13.6 The Buyer shall be responsible for arranging for the testing and inspection of the Goods at the Seller’s place of business before shipment. The Seller shall have no liability for any defect in the Goods which would be apparent on inspection and in respect of which notification is made after shipment, or in respect of any damage to the Goods whilst in transit during shipment.
13.7 Payment of all amounts due to the Seller shall be made against presentation of shipping documents and in accordance with the provisions of Condition 8.2.
14. ORDERS FOR GOODS LISTED ON THE SELLER’S WEBSITE
14.1 The Seller owns and operates the websites www.graingertubolt.com and www.interclamp.com (each hereinafter individually and collectively referred to as the site). The Seller is registered in England and Wales under company number 1539451 with the Seller’s registered office being located at Llanion Works Hobbs Point, Pembroke Dock, Pembrokeshire, SA72 6WS and main trading address being located at Units A&B Meyrick Owen Way, Pembroke Dock, Pembrokeshire, SA72 6WS.
14.2 If the Buyer wishes to purchase Goods listed on the site at a distance (by telephone, facsimile, email, mail order or via the portal https://weldspeed.com/graingers/home.asp on www.graingertubolt.com ), the Buyer is agreeing to comply with and be bound by the terms and conditions contained in this Condition 14, which together with the other terms and conditions incorporated in these Conditions shall govern all sales made at a distance (save that in the event of any conflict, the terms and conditions contained in this Condition 14 shall prevail).
14.3 The content of the pages of the site is for the Buyer’s general information and use only and is subject to change without notice.
14.4 All Goods are offered by the Seller subject to availability and the Seller reserves the right to cancel any order placed by the Buyer if the Seller has insufficient stock to deliver the Goods the Buyer has ordered.
14.5 By placing an order at a distance, the Buyer warrants that:
(a) the Buyer is legally capable of entering into binding contracts; and
(b) the Buyer is at least 18 years old.
14.6 All orders are subject to acceptance by the Seller, and the Seller will confirm such acceptance to the Buyer by sending the Buyer an e-mail dispatch notification together with a delivery note verifying that the Goods are ready to be dispatched (the Dispatch Notification). The Contract between the Buyer and the Seller will only be formed when the Seller sends the Buyer the Dispatch Notification.
14.7 The Contract will relate only to those Goods whose dispatch the Seller has verified in the Dispatch Notification. The Seller will not be obliged to supply any other Goods which may have been part of the Buyer’s order until the dispatch of such Goods has been verified in a separate Dispatch Notification.
14.8 The Buyer’s order will be fulfilled by the delivery date set out in the Dispatch Notification or, if no delivery date is specified, then within a reasonable time of the date of the Dispatch Notification.
14.9 The Seller will deliver the Goods ordered by the Buyer to the address the Buyer gives the Seller for delivery when the Buyer places its order. It is the Buyer’s responsibility to ensure that the delivery address is accurate and complete; the Buyer must also ensure that there will be somebody to sign for and take delivery of the Goods upon delivery.
14.10 All deliveries will be made by the method(s) stipulated on the site or as stipulated otherwise.
14.11 All deliveries will be charged at the rates set out in the site or otherwise notified to the Buyer at the time of purchase.
14.12 The Buyer may be required to pay extra for delivery to certain destinations and it might not be possible for the Seller to deliver to some locations. If the Seller is unable to deliver to the Buyer’s location the Seller will notify the Buyer of this by email and invite the Buyer to choose a different delivery location; if the Buyer is unable or unwilling to do this, the Seller reserves the right to cancel the Buyer’s order and refund the Buyer’s payment.
14.13 If the Buyer’s order is returned to the Seller because the carrier could not complete delivery to the Buyer for any reason, the Buyer will be responsible for the additional delivery charges if the Goods are re-delivered. The Seller will contact the Buyer upon the return of the Goods to the Seller by the carrier and the Seller can either arrange re-delivery of the Goods, or the Buyer will have the option of cancelling the Buyer’s order and the Seller will refund the Buyer’s payment, less delivery charges.
14.14 For small orders, the Seller will be entitled to make an additional charge.
14.15 In the event that the Buyer is in breach of the Contract, the Seller reserves the right to refuse to supply the Buyer with any additional Goods, or to suspend the delivery of any Goods, without limiting any other remedy available to the Seller. The Seller may exercise this right until such time as the breach has been remedied, where such breach is remediable.
14.16 All quoted prices exclude VAT (where applicable) unless otherwise stated. VAT will be added to invoices at the appropriate rate.
14.17 Where the price of the Goods appears on the site, the price of the Goods will be as quoted on the site from time to time, except in cases of obvious error.
14.18 All prices and charges shown on the site are in UK pounds sterling, which is the currency in which the Buyer will be billed.
14.19 Prices are liable to change at any time, but changes will not affect orders in respect of which the Seller has already sent the Buyer a Dispatch Notification.
14.20 The site contains a large number of Goods and it is always possible that, despite the Seller’s best efforts, some of the Goods listed on the site may be incorrectly priced. The Seller will normally verify prices as part of the Seller’s dispatch procedures so that, where the correct price of the Goods is less than the Seller’s stated price, the Seller will charge the lower amount when dispatching the Goods to the Buyer. If the correct price of the Goods is higher than the price stated on the site, the Seller will normally, at the Seller’s discretion, either contact the Buyer for instructions before dispatching the Goods, or reject the Buyer’s order and notify the Buyer of such rejection.
14.21 The Seller is under no obligation to provide the Goods to the Buyer at the incorrect (lower) price, even after the Seller has sent the Buyer a Dispatch Notification, if the pricing error is obvious and unmistakeable and could have reasonably been recognised by the Buyer as a mispricing.
14.22 Payment in full for all Goods is required at point of sale. Goods will not be dispatched until full payment has been received; this will not be deemed to have occurred until the credit or debit card used by the Buyer to make payment has been verified. The Seller accepts payment with all major credit and debit cards.
14.23 Subject to the rights of any Buyer who contracts with the Seller as a consumer (see Conditions 14.24-14.32 below) no cancellation, suspension or variation of the Contract requested by the Buyer shall be valid unless agreed with the Seller in writing and such agreement will only be given, subject to adequate compensation or expenses incurred in connection with the Contract and for any loss of profit.
14.24 A Buyer shall be deemed to be placing their order for Goods from the Seller as a consumer if the Buyer is not acting for the purposes of their business, trade or profession in purchasing Goods from the Seller. All other Buyers shall be deemed to be business customers.
14.25 A consumer may cancel a Contract entered into with the Seller at a distance (without giving any reason for cancellation) at any time within the period:
(a) beginning upon the submission of the Buyer’s order; and
(b) ending at the end of 14 days after the day on which the Goods come into the Buyer’s physical possession or the physical possession of a person identified by the Buyer to take possession of them (or, if the Contract is for delivery of multiple Goods, lots or pieces of something, 14 days after the day on which the last of those Goods, lots or pieces comes into the Buyer’s physical possession or the physical possession of a person identified by the Buyer to take possession of them).
14.26 In order to cancel a Contract on the basis described in Condition 14.25, the Buyer must inform the Seller of the Buyer’s decision to cancel. The Buyer may inform the Seller by means of any clear statement setting out the decision. To meet the cancellation deadline, it is sufficient for the Buyer to send the Buyer’s communication concerning the exercise of the right to cancel before the cancellation period has expired.
14.27 The Buyer must send the Goods back to the Seller or hand them over to the Seller or a person authorised by the Seller to receive them. The Buyer must comply with the Buyer’s obligations referred to in this Condition 14.27 without undue delay and in any event not later than 14 days after the day on which the Buyer informs the Seller of the Buyer’s decision to cancel the Contract. The Buyer must pay the direct cost of returning the Goods.
14.28 If the Buyer cancels a Contract on the basis described in Condition 14.25, the Buyer will receive a full refund of the amount the Buyer paid to the Seller in respect of the order including the costs of delivery to the Buyer.
14.29 If the value of the Goods returned by the Buyer is diminished by any amount as a result of the handling of those Goods by the Buyer beyond what is necessary to establish the nature, characteristics and functioning of the Goods, the Seller may recover that amount from the Buyer up to the full amount of the Price. The Seller may recover that amount by deducting it from any refund due to the Buyer or require the Buyer to pay that amount direct to the Seller. Handling which goes beyond the sort of handling that might reasonably be allowed in a store will be "beyond what is necessary to establish the nature, characteristics and functioning of the Goods" for these purposes.
14.30 Unless the Seller has offered to collect the Goods, the Seller will process a refund due to the Buyer as a result of a cancellation on the basis described in Condition 14.25 within the period of 14 days after the day on which the
Seller receives the returned Goods or (if earlier) after the day on which the Buyer supplies to the Seller evidence of having sent the Goods back. If the Seller has not sent the Goods to the Buyer at the time of cancellation or has offered to collect the Goods, the Seller will process a refund due to the Buyer without undue delay and, in any case, within the period of 14 days after the day on which the Seller is informed of the cancellation.
14.31 The Seller will normally refund any money received from the Buyer using the same method originally used by the Buyer to pay for the Buyer’s purchase.
14.32 The cancellation right described in Condition 14.25 is in addition to any other right that the Buyer might have to reject the Goods, for instance because they are faulty or defective.
14.33 The Buyer will not have the right to cancel a Contract on the basis described in Condition 14.25 in respect of any Goods which are made, modified or personalised to the Buyer’s requirements, nor in respect of any Goods which are perishable.
15. CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS
15.1 The Buyer and the Seller agree that in the course of the Seller supplying Goods to the Buyer, the parties may disclose to each other certain Confidential Information. The Buyer and the Seller agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party. The Buyer shall not use any Confidential Information for any purpose other than to carry out the Buyer’s obligations to the Seller. Notwithstanding the provisions of this Condition 15.1, the Seller reserves the right to require the Buyer to sign a Non-Disclosure Agreement.
15.2 The Buyer acknowledges the Seller’s ownership of any Intellectual Property Rights in any Output Material and in any Goods provided to the Buyer pursuant to the Contract and agrees not to contest the Seller’s ownership or use of any such Intellectual Property Rights. The Buyer shall not acquire any such Intellectual Property Rights or any licence or grant of rights therein, nor shall the Buyer register or attempt or permit to be registered, any such Intellectual Property Rights or any licence or grant of rights therein. No Output Material may be copied or reproduced in whole or in part without the prior written consent of the Seller. The Buyer further acknowledges that any and all Intellectual Property Rights developed by the Seller in producing and supplying any Goods shall become vested and shall vest in the Seller absolutely. The Seller makes no representation or warranty that the use of the Goods will not infringe the Intellectual Property Rights of any third party and the Seller accepts no liability in this respect.
16.1 The Seller may assign the Contract or any part of it to any person, firm or company.
16.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
16.3 The Seller, but not the Buyer, shall be entitled to subcontract any or all of its obligations under all or any part of the Contract.
17. FORCE MAJEURE
The Seller reserves the right to defer the date of delivery, or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the
Seller including Acts of God, governmental actions, acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, war, threat of war, sabotage, insurrection, civil disturbance or requisition or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, tempest, accident, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), import or export regulations or embargoes, restraints or delays affecting carriers or any inability or delay in obtaining supplies of adequate or suitable materials, difficulties in obtaining labour, fuel, parts or machinery or power failure or breakdown in machinery provided that, if the event in question continues for a continuous period in excess of 180 days, the Buyer shall be entitled to give notice in writing to the Seller to terminate the Contract.
18.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
18.2 The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties.
18.3 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.
18.4 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
18.5 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
18.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
18.7 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by the laws of England and Wales and the parties submit to the non-exclusive jurisdiction of the courts of England and Wales.
19.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or email:
(a) (in case of communications to the Seller) to its registered office or such changed address as shall be notified to the Buyer by the Seller; or
(b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Seller by the Buyer.
19.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax or email, on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
Version Date: 11 August 2017 (Version No: 1.3)