KEW (ELECTRICAL DISTRIBUTORS) LIMITED – TERMS AND CONDITIONS OF SALE

The Buyer’s attention is drawn in particular to the provisions of clause 9.
1. Interpretation
1.1 Definitions
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.VAT registration number GB 673 7607 06.
1.2 Construction
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
2.1 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.
2.2 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.
2.3 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.
2.4 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.
2.5 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.
2.6 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.
3. GOODS
3.1 The Goods are described in the Seller’s catalogue or the Specification.
3.2 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.
3.3 The Seller reserves the right to amend the specification of the Goods or Specification if required by any applicable statutory or regulatory requirements.
4. DELIVERY
4.1 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.
4.2 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.
4.3 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.
4.4 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.
4.5 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.
4.6 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).
4.7 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.
4.8 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.
4.9 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.
4.10 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.
4.11 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.
4.12 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.
4.13 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.
5. QUALITY
5.1 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.
5.2 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.
5.3 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.
5.4 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.
5.5 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.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
6.2 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.
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;
(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.
6.4 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
7.1 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.
7.2 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.
7.3 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.
7.4 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.
7.5 The Seller may invoice the Buyer for the Goods on or at any time after the completion of delivery.
7.6 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.
7.7 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.
7.8 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.
7.9 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.
7.10 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
8.1 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.
8.2 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.
8.3 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.
8.4 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
9.1 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.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3 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.
9.4 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.
11. GENERAL
11.1 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.
11.2 Notices
(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.
11.3 Severance
(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.
11.4 Waiver
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.
11.5 Third party rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.6 Variation
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.
11.7 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.
11.8 Dishonoured cheques
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.
11.9 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.
11.10 Fraud/money laundering
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.
11.11 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.
………………………END

KEW (ELECTRICAL DISTRIBUTORS) LIMITED – TERMS AND CONDITIONS OF PURCHASE

1. Interpretation

• Definitions:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 17.4.

Contract: the contract between the Customer and the Supplier for the supply of the Goods and/or Services in accordance with these Conditions.

Customer: Kew (Electrical Distributors) Limited (registered in England and Wales with company number 03156034).

                        Customer Materials: has the meaning set out in clause 9.

                        Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).

Delivery Date: the date specified in the Order, or, if none is specified, within 30 days of the date of the Order.

Delivery Location: the address for delivery of Goods as set out in the Order.

Goods: the goods (or any part of them) set out in the Order.

Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form or the Customer’s written acceptance of the Supplier’s quotation, as the case may be.

                        Services: the services, including any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification.

                        Service Specification: the description or specification for Services agreed in writing by the Customer and the Supplier.

Supplier: the person or firm from whom the Customer purchases the Goods and/or Services.

• Interpretation:
  • 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;
  • 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; and
  • a reference to writing or written includes faxes and emails.

2. Basis of contract

• These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
• The Order constitutes an offer by the Customer to purchase the Goods and/or Services from the Supplier in accordance with these Conditions.
• The Order shall be deemed to be accepted on the earlier of:
  • the Supplier issuing a written acceptance of the Order; and
  • the Supplier doing any act consistent with fulfilling the Order,

at which point the Contract shall come into existence.

• The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
• All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.

3. The goods

• The Supplier shall ensure that the Goods shall:
  • correspond with their description and any applicable Goods Specification;
  • be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer expressly or by implication, and in this respect the Customer relies on the Supplier’s skill and judgement;
  • where they are manufactured products, be free from defects in design, material and workmanship and remain so for 12 months after delivery; and
  • comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
• The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
• The Customer may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract.
• If following such inspection or testing the Customer considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at clause 1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
• The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.

4. Delivery of Goods

• The Supplier shall ensure that:
  • the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
  • each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the unit quantity and the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
  • if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.
• The Supplier shall deliver the Goods:
  • on the Delivery Date;
  • at the Delivery Location; and
  • during the Customer’s normal business hours, or as instructed by the Customer.
• Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location and an employee, agent or authorised representative of the Customer signing the relevant delivery note.
• If the Supplier:
  • delivers less than the quantity of Goods ordered, the Customer may reject the Goods; or
  • delivers more than the quantity of Goods ordered, the Customer may at its discretion reject the Goods or the excess Goods,

and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and the Customer accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.

• The Supplier shall not deliver the Goods in instalments without the Customer’s prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all, or any defect in an instalment shall entitle the Customer to the remedies set out in clause 6.1.

5. The Services

• The Supplier shall from the date set out in the Order and for the duration of the Contract supply the Services to the Customer in accordance with the terms of the Contract.
• The Supplier shall meet any performance dates for the Services specified in the Order or that the Customer notifies to the Supplier and time is of the essence in relation to any of those performance dates.
• In providing the Services, the Supplier shall:
  • co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
  • perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
  • use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
  • ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that the Customer expressly or impliedly makes known to the Supplier;
  • provide all equipment, tools and vehicles and such other items as are required to provide the Services;
  • use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;
  • obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
  • comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply to the provision of the Services;
  • observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises;
  • not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services; and
  • comply with any additional obligations as set out in the Service Specification.
• The Customer shall:
  • provide the Supplier with reasonable access at reasonable times to the Customer’s premises for the purpose of providing the Services; and
  • provide such necessary information for the provision of the Services as the Supplier may reasonably request.

6. Remedies

• If the Goods are not delivered on the Delivery Date, or do not comply with the undertakings set out in clause 1, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, the Customer may exercise any one or more of the following remedies:
  • to terminate the Contract with immediate effect by giving written notice to the Supplier;
  • to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;
  • to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
  • to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
  • to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods from a third party; and
  • to claim damages for any other costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
• If the Supplier fails to perform the Services by the applicable date, then, without limiting any of its other rights or remedies, the Customer may exercise any one or more of the following remedies:
  • to terminate the Contract with immediate effect by giving written notice to the Supplier;
  • to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided;
  • to refuse to accept any subsequent performance of the Services;
  • to recover from the Supplier any costs incurred by the Customer in obtaining substitute services from a third party; and
  • to claim damages for any other costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier’s failure to meet such dates.
• These Conditions shall apply to any substituted or remedial Services and/or repaired or replacement Goods supplied by the Supplier.
• The Customer’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.

7. Title and risk

Title and risk in the Goods shall pass to the Customer on completion of delivery.

8. 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 Supplier’s published price list in force as at the date the Contract came into existence; and
  • includes the costs of packaging, insurance and carriage of the Goods unless otherwise agreed in writing with the Customer. No extra charges shall be effective unless agreed in writing with the Customer.
• The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by the Customer, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
• In respect of the Goods, the Supplier may invoice the Customer on or at any time after the completion of delivery. In respect of the Services, the Supplier may invoice the Customer on completion of the Services. The Supplier shall ensure that each invoice includes the date of the Order, the invoice number, the Customer’s order number, the Supplier’s VAT registration number and any supporting information and documents that the Customer may reasonably require.
• The Customer shall pay correctly rendered invoices in accordance with payment terms agreed between the parties in writing and after deduction of any applicable settlement discount. Payment shall be made to the bank account nominated in writing by the Supplier or by cheque or credit card.
• All amounts payable by the Customer under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
• The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Customer to inspect such records at all reasonable times on request.
• The Customer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier.

9. Customer materials

The Supplier acknowledges that all materials, equipment and tools, drawings, specifications, and data supplied by the Customer to the Supplier (Customer Materials) and all rights in the Customer Materials are and shall remain the exclusive property of the Customer. The Supplier shall keep the Customer Materials in safe custody at its own risk, maintain them in good condition until returned to the Customer and not dispose or use the same other than in accordance with the Customer’s written instructions or authorisation.

10. Intellectual property rights

• All existing and future Intellectual Property Rights arising out of or in connection with the Services and the Deliverables shall be owned by the Customer.
• The Supplier waives any moral rights in the Deliverables to which it is now or may at any future time be entitled under the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
• The Supplier shall promptly execute all documents and do all acts as may, in the opinion of the Customer, be necessary or desirable to give effect to this clause 10.
• The Supplier irrevocably appoints the Customer to be its attorney in its name and on its behalf to execute documents, use the Supplier’s name and do all things which are necessary or desirable for the Customer to obtain for itself or its nominee the full benefit of this clause 10.

11. Indemnity

• The Supplier shall keep the Customer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Customer as a result of or in connection with:
  • any claim made against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the manufacture, supply or use of the Goods, or receipt, use or supply of the Services;
  • any claim made against the Customer by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods, as delivered, or the Deliverables;
  • any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services; and
  • any claim made against the Customer by a third party arising out of or in connection with any breach or non-compliance with the undertakings set out in clause 3.1.
• This clause 11 shall survive termination of the Contract.

12. Insurance

During the term of the Contract, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.

13. Confidentiality

• A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause 13 as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
• This clause 13 shall survive termination of the Contract.

14. Compliance with relevant laws and policies

• In performing its obligations under the Contract, the Supplier shall comply with all applicable laws, statutes, regulations and codes from time to time in force.
• The Customer may immediately terminate the Contract for any breach of clause 14.

15. Termination

• The Customer may terminate the Contract in whole or in part at any time before delivery of the Goods or supply of the Services with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. The Customer shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods or the Services at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
• Without limiting its other rights or remedies, the Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if:
  • the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
  • the Supplier takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
  • the Supplier takes any step or action in connection with the Supplier being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his assets, or ceasing to carry on business or if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
  • the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  • the Supplier’s financial position deteriorates to such an extent that in the Customer’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
• All amounts paid by the Customer to the Supplier on account or which relate to any Goods to be delivered or Services to be supplied after termination of the Contract (whether by deposit, prepayment or otherwise) shall belong to the Customer, and the Supplier shall pay all such amounts to the Customer in full without any set-off, counterclaim, deduction or withholding within 7 days of termination of the Contract and shall hold all such sums on trust for the Customer until paid.
• On termination of the Contract, the Supplier shall immediately deliver to the Customer all Deliverables whether or not then complete, and return all Customer Materials. If the Supplier fails to do so, then the Customer may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
• Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination.
• Clauses that expressly or by implication survive termination of the Contract shall continue in full force and effect.

16. Force majeure

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure results from an event, circumstance or cause beyond its reasonable control. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the Contract by giving 14 days written notice to the affected party.

17. General

• Assignment and other dealings
  • The Customer may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract.
  • The Supplier may not assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Customer.
• The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of the Customer. If the Customer consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.
• Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
• Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Customer.
• Except as set out in clause 2.4, 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
• If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
• No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
• • 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 (if it is a company) or its principal place of business (in any other case) 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, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
  • A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 8(a); if sent by pre-paid first class post or other next working day delivery service, 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 email, one Business Day after transmission.
  • This clause does not apply to the service of any proceedings or other documents in any legal action, or other method of dispute resolution.
• Third party rights. No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms.
• Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
• Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.