TERMS AND CONDITIONS OF SALE – INTERFLOOR LIMTIED – THESE TERMS & CONDITIONS RELATE TO TRADE SALES ONLY AND NOT CONSUMER SALES
In these Terms and Conditions “the Company” means Interfloor Limited (company number 00162988) whose registered address is Broadway, Haslingden, Rossendale, Lancashire BB4 4LS; “the Buyer” means the person, firm or company purchasing the goods from the Company under the contract between the Company and the Buyer; “Contract” means the contract made between the Company and the Customer in accordance with Condition 2 and “Goods” means the goods or services the subject matter of the Contract. A “Consumer” shall mean a consumer as defined by the Unfair Contract Terms Act 1977 (as amended) or Unfair Terms in Consumer Contract Regulations 1999 (as amended). The statutory rights of a Buyer who is a Consumer are not affected by these Terms and Conditions.
DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions the following expressions will have the following meanings unless inconsistent with the context:
“Intellectual Property Rights”
all intellectual and industrial property rights including patents, know-how, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade marks, rights to prevent passing off for unfair competition and copyright, database rights, topography rights and any other rights in any invention, discovery or process, in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions or rights to apply for the same.
“Terms and Conditions”
the standard terms and conditions of sale set out in this document together with any special terms agreed in writing between the Buyer and the Company.
1.2 The headings in these Terms and Conditions are for convenience only and will not affect their construction or interpretation.
2.1 Subject to any variation under Condition 2.7, the Contract will be upon these Terms and Conditions to the exclusion of any terms and conditions stipulated, incorporated or referred to by the Buyer whether in its order or in other documents or communications.
2.2 Any terms specifically agreed between the parties that are in addition to these Terms and Conditions will only be incorporated into the Contract if such terms are in writing and signed by a director of the Company.
2.3 Each order or acceptance of a quotation for Goods will be deemed to be an offer by the Buyer to purchase Goods upon these Terms and Conditions. The Contract is formed when the order is accepted by the Company, by way of written confirmation of order acceptance. No contract will come into existence until written confirmation of order acceptance is issued by the Company or the Goods are delivered to the Buyer.
2.4 Unless otherwise stated any quotation is valid for a period of 30 days only from its date, provided the Company has not previously withdrawn it.
2.5 The Buyer must ensure that the terms of its order are complete and accurate.
2.6 Contracts may be cancelled by either party only on 24 hours’ written notice after the confirmation of order acceptance is issued by the Company in accordance with Condition 2.3 (provided always that such notice is given before the Goods are despatched to the Buyer and, if not, such notice shall have no effect).
2.7 The Buyer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
2.8 Save as set out in the Contract, these Terms and Conditions may only be varied or amended in writing and signed by a director of the Company.
3.1 The quality and description of the Goods will be as per the appropriate latest samples of the Goods provided by the Company to the Buyer.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company (or the manufacturer of the Goods) and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods represented by or described in them. They will not form part of the Contract and this is not a sale by sample.
3.3 The Company may make any changes to the specification, design, materials or finishes of the Goods which:
3.3.1 are required to conform with any applicable safety or other statutory or regulatory requirements; or
3.3.2 do not materially affect their appearance, quality or performance.
3.4 The Company reserves the right, upon giving 28 days notice to the Buyer, to discontinue or replace any of the Goods.
Title and property in stillage packaging (and pallets if applicable) remains vested in the Company. The Buyer shall maintain such packaging in good order and make such packaging available (at no cost to the Company) for collection within 5 working days of demand. If the Buyer fails to make such packaging available, the Company may charge for it or set off its value against any sums due to the Buyer from the Company under this or any other contract.
5.1 The price for the Goods will be the price set out in the Company’s published price list provided to the Buyer current at the date of acceptance of order by the Company or the price set out in a written quotation from the Company. All prices quoted are exclusive of Value Added Tax unless otherwise stated.
5.2 The Company will be entitled on written notice prior to delivery to increase the price of the Goods in order to reflect increases in the cost of materials, labour, transport, energy and other costs incurred in manufacturing and supplying the Goods and/or following any changes in the specification made both at the request of the Buyer and agreed by the Company or to cover any extra expense as a result of the Buyer’s instructions or lack of instructions, or to comply with the requirements referred to in Condition 3.3.1. With the exception of a price increase that can be directly attributable to the Buyer’s instructions or lack thereof, for which a price increase will be immediately effective, all other price increases will take effect upon the expiry of the 28 day written notice.
6.1 The Company may invoice the Buyer for the Goods on or at any time after delivery and subject to Condition 6.4, payment is due in the invoice currency within 30 days of the end of the month within which the Goods were invoiced.
6.2 Time for payment will be of the essence.
6.3 No payment will be deemed to have been received until the Company has received cleared funds.
6.4 All sums payable to the Company under the Contract will become due immediately upon termination of the Contract.
6.5 Subject to Condition 6.6, the Buyer shall not be entitled to withhold or set-off payment of any amount payable to the Company whether by reason of any dispute or claim by the Buyer relating to the Goods or otherwise.
6.6 Any dispute in respect of the amount of any payments to be made by the Buyer to the Company under the Contract must, on the part of the Buyer, be raised by the Buyer by notice in writing to the Company within 10 Business Days (being any day other than a Saturday, Sunday or a public holiday in England) of receipt by the Buyer of the relevant invoice. The Company shall then respond (the “Response”) to such written notice either confirming or amending as appropriate the relevant amount the Company deems payable by the Buyer in respect of such disputed amount. The Buyer shall, subject to Condition 6.3, pay any amended amount (as applicable) to the Company within 5 Business Days of receipt of the Response or in accordance with Condition 6.1 (whichever is the later time). If an amount remains in dispute after the Response, the parties will seek to resolve the dispute as soon as possible. The provisions of this Condition 6.6 shall only apply to the difference between the amounts shown due from the Buyer to the Company on the invoice and the amount the Buyer contends is payable and all undisputed amounts payable shall be paid by the Buyer in accordance with Condition 6.1.
6.7 The Company may appropriate any payment made by the Buyer to the Company to such of the invoices for the Goods as the Company thinks fit, despite any purported appropriation by the Buyer.
6.8 If any sum payable under the Contract is not paid when due then, without prejudice to the Company’s other rights under the Contract, that sum will bear interest from the due date until payment is made in full, both before and after any judgment, at 4% per annum over The Bank of England base rate from time to time and the Company will be entitled to suspend deliveries of the Goods until the outstanding amount has been received in cleared funds by the Company from the Buyer.
7.1 The Company may deliver the Goods by separate instalments. Each separate instalment will be invoiced and paid for in accordance with the provisions of the Contract.
7.2 Each instalment will be a separate Contract and no cancellation or termination of any one Contract relating to an instalment will entitle the Buyer to reject, repudiate or cancel any other Contract or instalment or withhold payment for any other Contract or instalment.
8.1 The Buyer will take delivery of the Goods within five (5) days of the Company giving it notice that the Goods are ready for delivery. Delivery of the Goods will be made during the Company’s usual business hours.
8.2 Subject to Condition 8.3 or unless otherwise agreed in writing, delivery of the Goods shall occur when the Company (itself or through a carrier) makes the Goods available for offloading at the Buyer’s premises. The Buyer is responsible for offloading the Goods from the Company’s (or carrier’s) vehicle and will provide at its expense at the delivery point adequate and appropriate equipment and manual labour for offloading the Goods.
8.3 Unless agreed in writing between the parties Delivery of Goods to destinations outside the United Kingdom shall be made EXW (as defined in Incoterms 2000) the Company’s business premises.
8.4 The Company will use reasonable endeavours to deliver each of the Buyer’s orders for the Goods within the time agreed and, if no time is agreed, then within a reasonable time, but the time of delivery will not be of the essence. If, despite those endeavours, the Company is unable for any reason to fulfil any delivery or performance on the specified date, the Company will be deemed not to be in breach of this Contract, nor (for the avoidance of doubt) will the Company have any liability to the Buyer for direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused (including as a result of negligence) by any delay or failure in delivery except as set out in this condition. Any delay in delivery either of the whole order or any instalments will not entitle the Buyer to cancel the order.
8.5 If the Buyer delays or fails to take delivery of any of the Goods when they are ready for delivery or to provide any instructions, documents, licences or authorisations required to enable the Goods to be delivered on time (except solely on account of the Company’s default), the Goods will be deemed to have been delivered on the due date and (without prejudice to the Company’s other rights) the Company shall be entitled to:
8.5.1 store or arrange for storage of the Goods until actual delivery or sale in accordance with Condition 8.5.2 and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance);
8.5.2 following written notice to the Buyer, sell any of the Goods at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract or account to the Buyer for any excess achieved over the price under the Contract, in both cases having taken into account any charges related to the sale; and/or
8.5.3 charge the Buyer for the reasonable cost incurred by the Company, and/or the Company’s carrier, arising from the failed or delayed delivery.
8.6 Risk of damage to or loss of the Goods will pass to the Buyer on delivery in accordance with Condition 8.2 (or deemed delivery in accordance withCondition 8.5).
8.7 The Buyer shall ensure that (at delivery):
8.7.1 an authorised representative of the Buyer is present and checks the Goods delivered; and
8.7.2 the authorised representative signs the delivery note and details any discrepancy in writing on the delivery note.
8.7.3 Goods supplied in accordance with the Contract cannot be returned without the prior permission of the Company. The Company will not accept or take responsibility for such Goods returned without its prior written permission. Duly authorised returns shall be sent to the Company’s premises at the Buyer’s expense.
For the purposes of this Condition 8.7 any employee or contractor of the Buyer present at the unloading of the Goods shall be deemed to be an authorised representative of the Buyer.
9.1 Ownership of the Goods will not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
9.1.1 the Goods; and
9.1.2 all other sums which are or which become due to the Company from the Buyer on any account.
9.2 Until ownership of the Goods has passed to the Buyer, the Buyer must:
9.2.1 hold the Goods on a fiduciary basis as the Company’s bailee;
9.2.2 store the Goods (at no cost to the Company) separately from all other Goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
9.2.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
9.2.4 maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company, and will whenever requested by the Company produce a copy of the policy of insurance.
9.3 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
9.3.1 any sale will be effected in the ordinary course of the Buyer’s business at full market value and the Buyer will account to the Company accordingly; and
9.3.2 any such sale will be a sale of the Company’s property on the Buyer’s own behalf and the Buyer will deal as principal when making such a sale.
9.4 The Buyer’s right to possession of the Goods will terminate immediately if any of the circumstances set out in Condition 12.1 occur.
9.5 The Company will be entitled to recover payment for the Goods notwithstanding that title in any of the Goods has not passed from the Company.
9.6 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
9.7 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer will be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
9.8 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this Condition 9 will remain in effect.
10.1 The Company will, free of charge, within a period of six (6) months from the date of delivery of Goods which are proved to the reasonable satisfaction of the Company to be damaged or defective due to defects in material or workmanship replace such Goods. This obligation will not apply where:
10.1.1 the Goods have been improperly altered in any way whatsoever, or have been subject to misuse or unauthorised repair;
10.1.2 the Goods have been fitted, installed or connected (whether properly fitted, installed or connected or otherwise) or otherwise disposed of by the Buyer (howsoever arising);
10.1.3 any maintenance requirements relating to the Goods have not been complied with;
10.1.4 any instructions as to storage of the Goods have not been complied with in all respects; or
10.1.5 the Buyer has failed to notify the Company of any defect or damage or suspected defect within 14 days of the delivery where the defect should be apparent on reasonable inspection, or within 14 days of the same coming to the knowledge of the Buyer where the defect is not one which should be apparent on reasonable inspection, and in any event no later than six (6) months from the date of delivery.
10.2 The Company may, on request, inspect and/or collect from the Buyer any such defective or damaged Goods, and will deliver any replacement Goods to the Buyer at the Company’s own expense.
10.3 Any Goods which have been replaced will belong to the Company. Any replacement Goods will be liable to replacement under the terms specified in clause 10.1 for the unexpired portion of the six (6) month period from the original date of delivery of the replaced Goods.
Exclusion of Liability
10.4 In the event of any breach of the Company’s express obligations under Conditions 10.1, 10.2 and 10.3 above the remedies of the Buyer will be limited to damages.
10.5 The Company does not exclude its liability (if any) to the Buyer:
10.5.1 for breach of the Company’s obligations arising under section 12 Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982;
10.5.2 for personal injury or death resulting from the Company’s negligence;
10.5.3 under section 2(3) Consumer Protection Act 1987;
10.5.4 for any matter which it would be illegal for the Company to exclude or to attempt to exclude its liability; or
10.5.5 for fraud.
10.6 Except as provided in Conditions 10.1 to 10.5, the Company will be under no liability to the Buyer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any indirect or consequential loss or for any loss of profits, loss of business, depletion of goodwill and like loss howsoever caused arising out of or in connection with:
10.6.1 any of the Goods, or the manufacture or sale or supply, or failure or delay in supply, of the Goods by the Company or on the part of the Company’s employees, agents or sub-contractors;
10.6.2 any breach by the Company of any of the express or implied terms of the Contract;
10.6.3 any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods;
10.7 Any liability incurred by the Company under Condition 10.6 shall be capped at the lower of, the value of the Contract under which the liability arises or £50,000.
10.8 Except as set out in Conditions 10.1 to 10.5, the Company hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Buyer.
10.9 Each of the Company’s employees, agents and sub-contractors may rely upon and enforce the exclusions and restrictions of liability in Conditions 8.4 and 10.4 to 10.7 in that person’s own name and for that person’s own benefit, as if the words “its employees, agents and sub-contractors” followed the word Company wherever it appears in those clauses save each reference in Condition 10.6.1.
10.10 The Buyer acknowledges that the above provisions of this Condition 10 are reasonable and reflected in the price which would be higher without those provisions, and the Buyer will accept such risk and/or insure accordingly.
10.11 The Buyer agrees to indemnify, keep indemnified and hold harmless the Company from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which the Company incurs or suffers as a consequence of a direct or indirect breach or negligent performance or failure in performance by the Buyer of the terms of the Contract.
11.1 The Company shall be under no liability for any loss damage or delay or expenses of any kind whatsoever caused wholly or in part by any cause preventing the Company from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable contemplation and/or control of the Company including, without limitation, Act of God, outbreak of war, civil commotion, government policies or restrictions on export or import or other licenses, trade or industrial disputes of whatever nature, whether or not such dispute involves the Company, its servants or agents , or by any other contingency (“Force Majeure”). The Company will be deemed not to be in breach of the Contract or otherwise liable to the Buyer in any manner whatsoever for any failure or delay in performing its obligations under the Contract due to Force Majeure, provided that it has and continues to comply with its obligations set out in Condition 11.2.
11.2 If the Company’s performance of its obligations under the Contract is affected by Force Majeure:
11.2.1 it will give written notice to the Buyer (provided always that if this is not reasonably practicable due to the event of Force Majeure such notice will be deemed to have been given upon the event of Force Majeure provided that the Company gives written notice to the Buyer as soon as reasonably practicable thereafter), specifying the nature and extent of the Force Majeure, as soon as reasonably practicable after becoming aware of the Force Majeure and will at all times use all reasonable endeavours to bring the Force Majeure event to an end and, whilst the Force Majeure is continuing, mitigate its severity ,without being obliged to incur any expenditure;
11.2.2 subject to the provisions of Condition 11.3, the date for performance of such obligation will be deemed suspended only for a period equal to the delay caused by such event; and
11.2.3 it will not be entitled to payment from the Buyer in respect of extra costs and expenses incurred by virtue of the Force Majeure.
11.3 If the Force Majeure in question continues for more than three months, either party may give written notice to the other to terminate the Contract. The notice to terminate must specify the termination date, which must not be less than 15 days after the date on which the notice is given, and once such notice has been validly given, the Contract will terminate on that termination date.
12.1 The Company may by notice in writing served on the Buyer terminate the Contract immediately if the Buyer:
12.1.1 is in material breach of any of the terms of the Contract and the breach is incapable of remedy. Failure to pay any sums due in accordance withCondition 6.1 is a material breach of the terms of the Contract which is not capable of remedy;
12.1.2 is in material breach of any of the terms of the Contract where the breach is capable of remedy and the Buyer fails to remedy such breach within 15 days service of a written notice from the Company, specifying the breach and requiring it to be remedied;
12.1.3 becomes bankrupt, insolvent, makes any composition with his creditors, has a receiver appointed under the Mental Health Act 1983 or dies;
12.1.4 has any distraint, execution or other process levied or enforced on any of its property;
12.1.5 ceases to trade or appears in the reasonable opinion of the Company likely or is threatening to cease to trade;
12.1.6 is subject to a term of imprisonment whether or not suspended;
12.1.7 has a change in its management and/or control as defined by section 840 Income and Corporation Taxes Act 1988; or
12.1.8 the equivalent of any of the above occurs to the Buyer under the jurisdiction to which the Buyer is subject or the Company reasonably anticipates that one of the above set of circumstances is about to occur.
12.2 The termination of the Contract howsoever arising is without prejudice to the rights, duties and liabilities of either the Buyer or the Company accrued prior to termination and the conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
12.3 The Company will be entitled to suspend any deliveries otherwise due to occur following service of a notice specifying a breach under Condition 12.1.2, until either the breach is remedied or the Contract terminates, whichever occurs first.
12.4 If a Contract terminates at any time (howsoever arising) the Company shall be entitled to cancel any orders due for delivery following the date of such termination in accordance with Condition 2.6. If the Company does not cancel an order in accordance with Condition 2.6, the Buyer shall be required to pay the Company in accordance with the Contract.
No right or licence is granted to the Buyer in respect of the Intellectual Property Rights of the Company, except the right to use, or re-sell the Goods in the Buyer’s ordinary course of business.
14.1 Time for performance of all obligations of the Buyer under the Contract is of the essence.
14.2 Time for performance of all obligations of the Company under the Contract is not and may not be made by notice of the essence.
14.3 Each right or remedy of the Company under any Contract is without prejudice to any other right or remedy of the Company under this or any other Contract.
14.4 If any condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Contract and will be ineffective without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect.
14.5 No failure or delay by the Company to exercise any right, power or remedy provided under this agreement 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. A waiver will only be effective if given in writing.
14.6 The Buyer shall not be entitled to assign or sub-contract the Contract without the prior written consent of the Company. However, the Company may assign or sub-contract the Contract or any part of it to any person, firm or Company
14.7 Save as set out in Condition 10.8, the parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
14.8 The Contract contains all the terms which the Company and the Buyer have agreed in relation to the Goods and supersedes any prior written or oral agreements, representations or understandings 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 Company which is not set out in the Contract. Nothing in this Condition 14.9 will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
15.1 The Company may make a search with a Credit Reference Agency, which will keep a record of that search and may share that information with other businesses. In some instances the Company may also make a search on the personal credit file of principal directors of the Buyer. Should it become necessary to review an account then again, a credit reference may be sought and a record kept. The Buyer acknowledges that the Company may monitor and record information relating to the trade performance of the Buyer and such records will be available to Credit Reference Agencies who will share that information with other businesses when assessing applications for credit and fraud prevention.
Any notice under or in connection with the Contract shall be in permanent readable form and shall be deemed properly delivered if addressed to the party concerned at its principal place of business or last known address and either hand delivered or sent by first class pre-paid post. Such notice shall be deemed to be delivered at time of delivery if delivered by hand or 48 hours after posting.
16.1 For the avoidance of doubt, where proceedings have been issued in the Courts of England and Wales, the provisions of the Civil Procedure Rules must be complied with in respect of the service of documents in connection with those proceedings.
The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any provision of the Contract will be governed by English law. The English Courts will have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Contract. The parties agree to submit to that jurisdiction.