TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS (THE “CONDITIONS”) Warning: these Conditions contain exclusion clauses and limitations on liability
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions, the following words and expressions shall have the following meanings:
BuyerThe person from whom the Seller receives an order, whether in writing, via fax or email or over the telephone or internet.
Contract : The contract between the Seller and the Buyer formed pursuant to Condition 2.2.
Delivery Address : The address for delivery of the Goods as detailed in the Order Acknowledgement (if applicable) or agreed by the Seller and the Buyer in writing or over the telephone.
Goods : The goods supplied or to be supplied by the Seller to the Buyer under the Contract.
Order Acknowledgement PriceThe Seller’s written or email acknowledgement or invoice of the Buyer’s order.
Seller : Bonchef Ltd, Unit 4D Paddock Road, Industrial Estate, Paddock Road, Caversham, Reading, Berkshire, RG4 5BY Reg. 05355077
Total Contract Price Working Day : Any day, not being a Saturday, Sunday, public holiday in England and Wales or Bonchef advertised holiday.
1.2 In these Conditions references to any statute or statutory provision shall include any statute or statutory provision which amends or replaces or has amended or replaced such statute or statutory provision and shall include any subordinate legislation made under the relevant statute.
1.3 In these Conditions: words and expressions in the singular include the plural and vice versa; references to a person include bodies corporate, unincorporated associations, partnerships, trusts, individuals and any combinations of any one or more of the foregoing; references to a “party” or the “parties” mean the Seller and/or the Buyer as the context requires; the words “include” and “including” shall be construed and interpreted without limitation; headings are for convenience only and shall not affect interpretation.
2.1 The Buyer’s order is an offer by the Buyer to purchase goods from the Seller on and subject to these Conditions.
2.2 The Buyer’s order shall be deemed to be accepted by the Seller and a contract between the Buyer and the Seller on and subject to these Conditions shall be formed upon the earliest to occur of an Order Acknowledgement being issued by the Seller or the Seller informing the Buyer by telephone that its order is accepted or the Seller delivering the Goods to the Delivery Address or the Seller informing the Buyer that the Goods are available for collection.
2.3 The Contract shall incorporate these Conditions to the exclusion of any and all terms or conditions contained in any purchase order or other document proffered at any time by the Buyer or otherwise brought to the Seller’s attention by the Buyer.
2.4 No variation to the Contract shall be binding unless agreed in writing by the Buyer and a duly authorised representative on behalf of the Seller.
3.1 All drawings, illustrations, specifications and descriptions of the Goods issued or published by the Seller are for general information purposes only and shall not form part of the Contract. The Contract is not a sale by sample.
3.2 The Seller reserves the right at any time without prior notice to the Buyer to alter or change the design, specification, materials and/or finish of the Goods, and the Buyer acknowledges and agrees that it shall not, by reason of any such alteration or change have the right to reject the Goods and/or to take action for breach of contract.
4.1 Subject to the provisions of Conditions 4.2 and 4.3, the Seller shall deliver the Goods to the Delivery Address and delivery of the Goods shall be deemed to have occurred immediately upon the arrival of the Goods at the Delivery Address.
4.2 If the Delivery Address is the Seller’s premises, the Buyer shall be responsible for collecting
the Goods therefrom.. Goods shall be collected between 10:00and 17:00 on a Working Day within five (5) Working Days of the date on which the Seller informs the Buyer that the Goods are available for collection. Delivery of the Goods shall be deemed to have occurred on the Seller placing the Goods at the Buyer’s disposal at the time of collection or at 17:00 on the final date for collection of the Goods, whichever is the earlier to occur.
4.3 If the Delivery Address is outside mainland Great Britain, the Goods shall be delivered DDU
(as such term is defined in Incoterms, 2000 edition) at the Delivery Address. Delivery of the Goods shall be deemed to have occurred on completion by the Seller of its obligations pursuant to such Incoterm. Where this Condition 4.3 applies, it shall take precedence over any other conflicting provision in these Conditions relating to the parties’ respective delivery obligations.
4.4 Time for delivery of the Goods shall not be of the essence of the Contract and any times or dates relating to delivery provided by the Seller are non-binding estimates only. The Seller shall have no liability to the Buyer in respect of or in connection with any delay in delivery of the Goods.
In particular but without limitation, if Condition 7.4 applies Goods will not be despatched or made available for collection until payment in full in cleared funds of the Total Contract Price has been received by the Seller.
4.5 With immediate effect from the time delivery of the Goods is deemed to have occurred pursuant to Conditions 4.1, 4.2 or 4.3, risk in the Goods shall pass to the Buyer and the Seller shall have no further obligations whatsoever in relation to the transportation, care or storage of the Goods.
4.6 If any Goods are still in the possession of the Seller after a period of five (5) Working Days from
the deemed delivery/collection date, the Seller shall have the right (without giving notice to the Buyer) to dispose of the Goods in any manner it sees t, including re-selling the Goods and retaining any proceeds of sale. The Buyer acknowledges and agrees that nothing in this Condition 4.6 shall be construed as preventing the Seller from taking any action against the Buyer for recovery of the Total Contract Price (or, if the Seller exercises its right to re-sell the Goods, such part of the Total Contract Price as is not recovered by the Seller by way of the proceeds of such re-sale) and any losses, damages, costs and/or expenses incurred by the Seller in connection with such disposal.
4.7 The Seller may, at its option, deliver Goods by separate instalments, in which case each instalment shall be treated as a separate contract on and subject to these Conditions. No breach by the Seller of any one contract relating to an instalment shall entitle the Buyer to any right of action, cancellation or termination in respect of either the Contract as a whole or any contract relating to any other instalment.
5.1 The Seller shall only be liable for any loss or damage to the Goods in transit if Conditions 4.1 or 4.3 apply to the Contract and the loss or damage occurs prior to the point at which delivery of the Goods is deemed to have occurred pursuant to Condition 4.1 or 4.3 (as applicable) and either:
5.2 Without prejudice to the provisions of Conditions 5.1 and 8.5, the Buyer shall inspect the Goods for defects immediately following collection or delivery and unless the Buyer notifies the Seller of any alleged defect in the Goods within seven (7) days of the date of delivery or collection of the Goods the Buyer shall be deemed to have accepted the Goods as delivered.
5.3 The Seller’s liability in respect of any alleged damage or defect notified to it pursuant to Conditions 5.1 or 5.2 shall be conditional upon the Buyer, in accordance with the Seller’s instructions, promptly making available for collection by the Seller or returning to the Seller at the Buyer’s cost the allegedly damaged or defective Goods.
5.4 Without prejudice to the provisions of Condition 8.5, the Seller’s liability in relation to any claim under this Condition 5 shall in all circumstances be limited (at the Seller’s sole option) to the replacement or repair as soon as reasonably practicable of any Goods which the Seller finds to be lost, damaged or defective or, where payment for such Goods has already been made by the Buyer, crediting the Buyer with the relevant amount of the Total Contract Price and, if applicable, the reimbursement to the Buyer of the Buyer’s reasonable costs incurred in returning such Goods to the Seller.
6.2 Without prejudice to the Buyer’s rights under Condition 6.4, the Buyer shall:
6.3 The Buyer hereby grants to the Seller and its representative an irrevocable licence at any time to enter without notice any premises where Retained Goods are being Stored or kept in order to inspect them and identify them as the Seller’s property.
6.4 The Buyer may use or re-sell any Retained Goods in the ordinary course of its business PROVIDED ALWAYS THAT the Buyer’s rights to re-sell Retained Goods shall be subject to the following conditions:
6.5 The Buyer’s powers of use and re-sale in respect of Retained Goods under Condition 6.4 shall terminate:
6.5.1 if at any time the Seller has any concerns regarding the Buyer’s financial circumstances, forthwith on the Seller serving notice on the Buyer
6.5.2 Automatically and immediately upon the occurrence of any of the following:
6.6 Upon termination of the Buyer’s powers of use and re-sale under Condition 6.4:
6.7 For the avoidance of doubt, the Buyer acknowledges and agrees that the Seller shall be entitled to recover from the Buyer payment for Retained Goods notwithstanding that legal and bene cial title to the same has not passed from the Seller.
6.8 Without prejudice to the automatic and immediate termination of the Buyer’s powers of use and re-sale of Retained Goods, the Buyer shall promptly give written notice to the Seller if, at any time, any of the events detailed in Condition 6.5.2 (i) to (xii) above occur, or the Buyer has reason to believe that any such event may occur.
7.1 The price for the Goods shall be that which is set out in the price list provided to the Buyer by the Seller which is current at the date of the Buyer’s order being placed, as such price list may have been varied by the written agreement of the Buyer and the Seller (the “Price List”).
7.2 The Price shall be exclusive of:
7.3 Subject always to Conditions 7.4, 7.5 and 7.6, unless otherwise agreed in writing and specified on the Seller’s invoice, payment of the Total Contract Price shall be due in full in cleared funds in pounds sterling within thirty (30) days from the date of the Seller’s invoice. Time of payment of the Total Contract Price shall be of the essence of the Contract.
7.4 If the Buyer does not have a credit account with the Seller, payment of the Total Contract Price shall be due in full in pounds sterling at the time of the Buyer placing its order.
7.5 If at any time prior to the due date for payment of the Total Contract Price the Seller has any reasonable concerns regarding the Buyer’s finnancial circumstances, the Seller shall have the right to:
7.6 The Total Contract Price shall become immediately due and payable by the Buyer in full on the occurrence of any of the events set out in Conditions 6.5.2(i) to (xii).
7.7 If the Total Contract Price (or any part thereof) is not paid by the Buyer by the due date, the Seller shall have the right to:
7.8 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.
7.9 The Buyer shall immediately on demand reimburse to the Seller any and all costs (including legal costs on a solicitor own client basis), expenses and charges incurred by the Seller as a result of any failure by the Buyer to make payment of the Total Contract Price (or any part thereof) by the due date, including any costs, expenses and charges incurred by the Seller or its representatives in the collection of any monies due to the Seller.
7.10 The Buyer shall immediately on demand reimburse to the Seller any monies which the Seller becomes liable to pay to any person (whether under contract or otherwise) in respect of taxes and/or duties payable on or in connection with the Goods as a consequence of the Buyer’s failure to make payment of such monies to the applicable person, together with any and all costs (including legal costs on a solicitor own client basis), losses, damages, expenses and charges suffered or incurred by the Seller in connection therewith.
8.1 Subject always to Conditions 8.4 and 8.5, the Seller warrants to the Buyer that the Goods shall, for a period of six months commencing on the date on which delivery is deemed to have occurred (the “Warranty Period”):
8.2 If, during the Warranty Period, the Buyer becomes aware of any breach of the warranty at condition 8.1 the Buyer shall:
8.3 The Seller’s liability in relation to any breach of warranty claim under this Condition 8 shall in all circumstances be limited (at the Seller’s sole option) to the replacement or repair as soon as reasonably practicable of any Goods which the Seller finds to be non-conforming or, where payment for such Goods has already been made by the Buyer, crediting the Buyer with the relevant amount of the Total Contract Price and, if applicable, the reimbursement to the Buyer of the Buyer’s reasonable costs incurred in returning such Goods to the Seller.
8.4 The Seller shall have no liability to the Buyer for any breach of warranty under this Condition 8:
(d) If the non-conformity in question was caused or aggravated by any act or omission on the part of the Buyer, its employees, officers, representatives or customers, including:
(i) Any use, handling, assembly or storage of the Goods in any manner contrary to any instructions provided by the Seller and/or good trade practice; or
(ii) Any modification or alteration of the Goods;
(e) For non-conformities caused by normal wear and tear; and/or
(f) If the Buyer makes any further use of the allegedly non-conforming Goods after discovering the non-conformity.
8.5 Save as provided in Condition 5.1, the Seller shall have no liability to the Buyer for any damage to or defect or non-conformity in any Goods which are hardware, including cutters, printers, heat presses, engraving and embroidery machines, and the warranty at Condition 8.1 shall not apply thereto. The Buyer shall, however, use reasonable endeavours to pass on to the Buyer, to the extent it is legally entitled to do so, the benefit of any warranty provided to it by the manufacturer of the Goods.
9.1 Subject always to Condition 9.2:
9.2 Nothing in the Contract shall be interpreted as excluding or limiting the liability of the Seller for any matter in respect of which it would be illegal or unlawful for the Seller to do so, including for death or personal injury resulting from negligence.
9.3 Any reference in the Contract to the Seller’s liability to the Buyer shall mean any liability of the Seller to the Buyer whatsoever, whether arising in contract, tort (including negligence and breach of statutory duty), misrepresentation or otherwise.
10.1 Subject always to Condition 10.2, no cancellation of the Contract by the Buyer shall be binding on the Seller unless agreed in writing by the Seller. Any agreed cancellation shall be subject to the conditions that:
10.2 The Seller shall have the right to terminate the Contract without liability to the Buyer immediately on giving the Buyer notice if:
11.1 The Seller reserves the right, without liability to the Buyer, to suspend, delay or cancel the performance of the Contract or any part thereof or reduce the volume of Goods to be supplied to the Buyer if the Seller is at any time prevented from or delayed in carrying out its obligations under the Contract due to any circumstances beyond its reasonable control (a “Force Majeure Event”).
11.2 If, pursuant to Condition 11.1, the Seller elects to suspend or delay performance of the Contract and the Force Majeure Event in question continues for a continuous period of more than thirty(30) days, the Buyer shall be entitled to cancel the Contract by giving notice in writing to the Seller.
12.1 The Seller is entitled to make a search on the Buyer with a credit reference agency which will keep a record of that search and will share information about the Buyer with other businesses. The Seller may also make enquiries with a credit reference agency about the Buyer’s principal directors if the Buyer is a company or about the Buyer’s partners if the Buyer is a partnership.
12.2 The Seller is entitled to monitor and record information relating to the Buyer’s credit performance and such records may be made available to credit reference agencies who may share that information with other businesses to assess applications for credit, manage ac counts, trace debtors and prevent fraud and money laundering.
12.3 By placing an order the Buyer consents to the Seller carrying out the activities referred to in this Condition 12.
13.1 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, at law or in equity.
13.2 Any failure or delay by the Seller in enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
13.3 If any provision of the Contract is found to be invalid, unenforceable or illegal by the courts of any jurisdiction to which it is subject, such invalidity, unenforceability or illegality shall not prejudice or affect the remaining provisions of the Contract which shall continue in full force and effect.
13.4 The Seller and the Buyer do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise by any person that is not a party to it.
13.5 With the exception of statements made fraudulently, the Contract constitutes the entire agreement between the Seller and the Buyer in connection with the sale of the Goods and the Buyer has not relied upon any representation save for a representation expressly set out in the Contract.
13.6 All notices between the parties concerning the Contract shall be in writing and delivered by hand, email, or sent by pre-paid first class post or fax to the address or fax number of the recipient as set out in the Contract or such alternative address, email or fax number as either party may notify to the other party in writing from time to time. Notices shall be deemed to have been received at the time of delivery if delivered by hand or email or two days after posting if sent by pre-paid first-class post or at the time of transmission if sent by fax.
13.7 The Contract shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.