TERMS AND CONDITIONS OF SALE
The Buyer's attention is drawn in particular to the provisions of clause 9.
In these Conditions, the following definitions apply:
Business Day: any day other than a Saturday, Sunday or public/Bank holiday in the United Kingdom
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
Contract: the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Delivery Location: as set out in clause 4.2
Buyer: the person or firm who purchases the Goods from the Seller.
Force Majeure Event: has the meaning given in clause 10.
Goods: the goods (or any part of them) set out in the Order.
Order: the Buyer's order for the Goods, as set out in the Buyer's purchase order form or in the Buyer's written acceptance of the Seller's quotation or in the Buyer's purchase order form, the Buyer's written acceptance of the Seller's quotation, as the case may be.
Specification: any specification for the Goods, including any related plans and drawings that is agreed in writing by the Buyer and the Seller.
Seller: Kew (Electrical Distributors) Limited (registered in England and Wales with company registration number 03156034) whose registered office address is 2 Chapel Road, Southwick, Brighton, East Sussex BN41 1PF.[673 7607 06]
In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) 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 those terms.
(e) A reference to writing or written includes faxes and e-mails.
2. Basis of Contract
These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Buyer are complete and accurate.
The Order shall only be deemed to be accepted when the Seller issues a written acceptance of the Order or supplies goods against the Order, at which point the Contract shall come into existence.
The Contract constitutes the entire agreement between the parties. 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.
Any samples, drawings, descriptive matter, or advertising produced by the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
The Goods are described in the Seller's catalogue or the Specification.
If the Goods are supplied ex-stock or are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed by the Seller in settlement of any claim for non-performance, compliance or infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification. This clause 3.2 shall survive termination of the Contract.
The Seller reserves the right to amend the specification of the Goods or Specification if required by any applicable statutory or regulatory requirements.
The Seller shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Buyer and Seller reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if the Seller requires the Buyer to return any packaging materials to the Seller, that fact is clearly stated on the delivery note. The Buyer shall make any such packaging materials available for collection at such times as the Seller shall reasonably request. Returns of packaging materials shall be at the Seller's expense.
Delivery of the goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the goods are ready for collection or if some other place for delivery is agreed by the Seller by the Seller delivering the Goods to that place.
Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location or on the completion of loading of the Goods at the Seller’s premises.
Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer's failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer's failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If the Buyer fails to take or accept delivery of the Goods within three business days of the Seller notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Seller's failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 a.m. on the third Business Day after the day on which the Seller notified the Buyer that the Goods were ready; and
(b) the Seller shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
If 10 Business Days after the day on which the Seller notified the Buyer that the Goods were ready for delivery the Buyer has not taken or accepted delivery of them, the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
The Buyer shall not be entitled to reject the Goods if the Seller delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Buyer that the wrong quantity of Goods was delivered.
The Seller may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
The Buyer shall notify the Seller within 3 Business Days of delivery taking place of any claim for damaged goods or shortages in the delivery. Any such claim made after this time will be rejected by the Seller.
Goods correctly supplied ex-stock may not be returned without the Seller’s written agreement. Goods so returned must be returned to the Seller directly or be consigned carriage paid to the Seller and be accompanied by a packing note stating the invoice number and the invoice date together with the reason for return. A minimum re-stocking charge of 20% of the price of the Goods will be imposed.
Any article that has been supplied to special requirements for the Buyer or have been especially manufactured for the Buyer will not be accepted by the Seller for return under any circumstances.
In certain circumstances, where goods are being especially manufactured, the Seller may be asked by its supplier to pay for said goods on a pro-forma basis. In these circumstances the Seller may also require the Buyer to pay for the goods in question on the same basis.
The Seller warrants that on delivery the Goods shall:
(a) conform in all material respects with their description and any applicable Specification or the Specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and
(d) be fit for any purpose held out by the Seller.
Subject to clause 5.3, if:
(a) the Buyer gives notice in writing to the Seller that some or all of the Goods do not comply with the warranty set out in clause 5.1 (a) in the case of a defect that is apparent on normal visual inspection, within 5 Business Days of delivery; and (b) in the case of a latent defect, within a reasonable period of the latent defect having become apparent. If the Buyer has not given notice of any defects in the Goods within the relevant time period, it shall be deemed to have accepted the Goods;
(b) the Seller is given a reasonable opportunity of examining such Goods; and
(c) the Buyer (if asked to do so by the Seller) returns such Goods to the Seller's place of business at the Buyer's cost,
the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
The Seller shall not be liable for Goods failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Buyer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) the defect arises because the Buyer failed to follow the Seller's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Seller following any drawing, design or Specification supplied by the Buyer;
(d) the Buyer alters or repairs such Goods without the written consent of the Seller;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
Except as provided in this clause 5, the Seller shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
Subject to clause 9,the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.
6. Title and risk
The risk in the Goods shall pass to the Buyer on completion of delivery.
Title to the Goods shall not pass to the Buyer until the Seller has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other goods or services that the Seller has supplied to the Buyer in respect of which payment has become due.
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;
(e) notify the Seller immediately if it becomes subject to any of the events listed in clause 8.2; and
(f) 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.
If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 8.2, or the Seller reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and 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, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
7. Price and payment
The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Seller's invoice or published price list in force as at the date of delivery.
The Seller may, by giving notice to the Buyer at any time up to 5 business days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Seller's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer.
The price of the Goods is exclusive of amounts in respect of Value Added Tax (VAT). The Buyer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
The Seller may invoice the Buyer for the Goods on or at any time after the completion of delivery.
Where a credit account has been agreed the Buyer shall pay the invoice in full and in cleared funds within 30 calendar days from the end of the month of invoice. Payment shall be made to the Bank account nominated in writing by the Seller or by cheque addressed to the Seller at its Head Office address. Alternatively payment may be made by debit or credit card. In the event a credit card or corporate charge card is used to make payment against a credit account a surcharge of 2% will apply. The Seller does not accept American Express cards. Time of payment is of the essence. Where no credit account has been agreed payment, in cash or by debit card or credit card, in full for the Goods, whether they be ex-stock or especially sourced or especially manufactured for the Buyer, is required at the time to Goods are ordered. The Seller does not accept cheques from customers who do not have an approved credit account.
If the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment (due date), then the Seller shall be at liberty to suspend further supplies until such time as the Buyer’s account is within the agreed payment terms.
The Buyer shall be liable to pay interest on any overdue amount at the rate of 4% per annum above Barclays Bank PLC 's base rate from time to time or the interest rate as set out, and varied at time to time, in the Late Payment of Commercial Debts (Interest) Act 1998, whichever the greater. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
In the event that the Buyer does not make payment and the Seller has to institute legal proceedings for the recovery of any debt due to the Seller then the entire debt due to the Seller will become payable immediately on demand whether that be overdue or not. Further, the Buyer will become liable to pay the Seller the price of goods sold and delivered together with any accrued/accruing interest, late payment compensation as defined in the Late Payment of Commercial Debts (Interest) Act 1998, Court costs, Enforcement costs and charges on a full indemnity basis.
The Buyer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Buyer shall not be entitled to assert any credit, set-off or counterclaim against the Seller in order to justify withholding payment of any such amount in whole or in part. The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
8. TERMINATION AND SUSPENSION
If the Buyer becomes subject to any of the events listed in clause 8.2, or the Seller reasonably believes that the Buyer is about to become subject to any of them and notifies the Buyer accordingly, or if the Buyer fails to pay any amount due under this Contract on the due date for payment then, without limiting any other right or remedy available to the Seller, the Seller may either (a) terminate the Contract with immediate effect by giving written notice to the Buyer; or (b) suspend all further deliveries under the Contract or under any other contract between the Buyer and the Seller without incurring any liability to the Buyer.
For the purposes of clause 8.1, the relevant events are:
(a) the Buyer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of Section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than (where the Buyer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer];
(c) (being a company) a Winding-Up Petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the Winding-Up of the Buyer, other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
(d) (being an individual) the Buyer is the subject of a Bankruptcy Petition, Individual Voluntary Arrangement or any other such order;
(e )a creditor or encumbrancer of the Buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an Administrator or if a notice of intention to appoint an Administrator is given or if an Administrator is appointed over the Buyer;
(g) (being a company) a Floating Charge holder over the Buyer's assets has become entitled to appoint or has appointed an Administrative Receiver;
(h) a person becomes entitled to appoint a Receiver over the Buyer's assets or a Receiver is appointed over the Buyer's assets;
(i) any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a) to clause 8.2(h) (inclusive);
(j) the Buyer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) the Buyer's financial position deteriorates to such an extent that in the Seller's opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Buyer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Sellers outstanding unpaid invoices and interest.
9. Limitation of liability
This clause 9 sets out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Company in respect of:
(a) any breach of the Contract, including any deliberate personal repudiatory breach or any deliberate breach of the Contract by the Seller, or its employees, agents or subcontractors;
(b) any use made by the Company of the Goods; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
Nothing in the Contract limits or excludes the liability of the Seller:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Buyer as a result of fraud or fraudulent misrepresentation by the Seller; or
(c) for any liability incurred by the Buyer as a result of any breach by the Seller of the clause as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982; or
(d) any other liability which may not be excluded by law.
Subject to clause 9.2 and clause 9.3:
(a) The Seller shall not in any circumstances have any liability for any losses or damages which may be suffered by the Buyer (or any person claiming under or through the Buyer) whether the same are suffered directly or indirectly or are immediate or consequential and whether the same arise in contract, tort, (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) loss of profits; or
(ii) loss of business opportunity; or
(iii) loss of goodwill; or
(iv) loss of anticipated savings; or
(v) any special damage (even if the Seller was aware of the circumstances in which such special damage could arise)
provided that this clause 9.4(a) shall not prevent claims for loss and damage to the Buyer’s tangible property that fall within the terms of clause 9.4(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 9.4(a).
(b) 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 150% of the price paid for the Goods.
(c) The Buyer agrees that in entering into the Contract, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in the Contract or (if it did rely on any representations, whether written or oral, not expressly set out in the Contract) the Seller shall have no liability in any circumstances otherwise than in accordance with the express terms of this Contract.
10. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of Sellers or subcontractors.
Assignment and subcontracting
(a) The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Seller.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or its principal place of business or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one business day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Third party rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by a director or manager of the Seller.
Governing law and jurisdiction
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
In the event a cheque tendered to the Seller by the Buyer is not honoured on presentation to the Buyer’s Bank and is returned unpaid to the Seller the Seller shall be at liberty to raise a charge of £25 (Twenty five Pounds Only) to the Buyer’s account to cover its additional expenses and shall be entitled to seek recovery of all and any amount outstanding at the time whether any part of the account is overdue or not.
Credit reference agencies
The Seller uses a credit reference agency for the purposes of vetting the creditworthiness of new and existing credit accounts. The Buyer agrees that by completing an application form for a credit account with the Seller that the Seller can and will undertake any such searches or enquiries as it thinks appropriate. Further, that the Seller may, at any time in the future, undertake any further credit reference agency searches or enquiries as may be considered necessary in relation to the on-going business between the Seller and the Buyer.
The company will take such measures and make such enquiries as it deems necessary to prevent losses due to fraud and to ensure strict compliance with any anti-fraud/money laundering legislation.
These terms and conditions will apply to all sales made by the Seller including those through its own website – www.kewelectrical.co.uk – or from any third party website that the Seller has any direct or indirect connection with.