1.1 In these conditions:
‘Buyer’ means the ‘person’ ‘firm’ or ‘company’ named in the Order as the Buyer
‘Conditions’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) include any special terms and conditions agreed in Writing between the Buyer and the Seller and/or set out in the Order.
‘Contract’ means the contract for the supply of the goods, consisting of the Order (and any documents referred to therein) and these Conditions.
‘Delivery Date’ means the date that the Seller has agreed in Writing to deliver the Goods to the Buyer.
‘Goods’ means the goods which the Seller is to supply in accordance with the Contract.
‘Order’ means the Buyer’s order for the Goods as set out in the Seller’s quotation and the Buyer’s acceptance of the Seller’s quotation
‘Price’ has the meaning given in clause 4.1.
‘Seller’ means WHITESALES LIMITED (registered in England and Wales under number 08482222.)
‘Writing’ includes e-mails, cable, facsimile transmission and comparable means of communication, provided that where the term is used in the context of an amendment, substitution or variation to the Conditions.
1.2 Any reference in these Conditions to any provision of a statue, regulation, order or other form of legislation is construed as a reference to that provision as amended re-enacted or extended from time-to-time.
1.3 The headings in these conditions are for convenience only and shall not affect their interpretation.
2.1 These Conditions shall govern the Contract to the exclusion of any other terms and conditions.
2.2 The Seller shall supply the Goods to the Buyer and the Buyer shall purchase the Goods from the Seller in accordance with the Contract and these terms.
2.3 No variation to the Contract shall be binding unless agreed in Writing between the authorised representatives of the Seller and the Buyer.
2.4 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on and waives any claim for breach of, any such representations, which are not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 Where necessary, the Seller requires a minimum period of two weeks following acceptance of the Order in order to complete the design and relevant drawings. Time is not of the essence in this regard. Approval and/or review of any design, specification or similar matter by the Buyer or its representatives, whether occurring prior to or following the date of the Order shall constitute acceptance that the design satisfies the requirements of the Order.
3.4 Following approval of the drawings, a further 6-8 weeks is required by the Buyer for manufacture and delivery of the Goods. Time is not of the essence in this regard.
3.5 The quantity, quality and description of and any specification for the Goods shall be those set out in the Order and unless otherwise expressly set out therein the Seller gives no warranty that the Goods will conform to any particular standard specification or test.
3.6 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform to any applicable safety of other statutory requirements or which do not materially affect their quality or performance.
3.7 To the extent that the Goods are to be manufactured in accordance with a specification supplied by the Buyer, the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Seller’s use of such specification. This clause shall survive termination of the Contract.
3.8 No Order may be cancelled or terminated by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation or termination.
3.9 In addition to any other rights and remedies which the Seller may have, the Seller may at any time by written notice to the Buyer immediately terminate the whole or any part of the Seller’s engagement under the Contract.
4. Price of the Goods
4.1 The price of the Goods shall be the price set out in the Order or, where no prices have been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the Order (‘Price’). All prices quoted are valid for 60 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay the Seller.
4.3 Unless otherwise agreed in Writing, the Price of the Goods is exclusive of the costs incurred in packaging and transporting the Goods to the Buyer.
4.4 The Seller may, by giving notice to the Buyer at any time 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
(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.
4.5 The Price, and or any amounts quoted or invoiced are in £GBP unless specifically agreed otherwise in writing by a director of the Seller.
5. Terms of payment
5.1. The Seller may invoice the Buyer for the Goods at any time on or after delivery of the Goods. The invoice must be paid within 28 calendar days (the “Final Date for Payment”).
5.2 Payment by the Final Date for Payment shall be of the essence of the Contract.
5.3 In the event the Buyer has an existing credit account with the Seller which details in Writing payment terms different to the payment terms at 5.1 above, the payment terms detailed in the credit account shall prevail.
5.4 In the event of a failure to pay any sum due to the Seller by the Buyer by the Final Date for Payment the Buyer shall have the right to:
(a) appropriate any payment made by the Buyer to such of the Goods (or any Goods supplied under any other contract between the Buyer and Seller); and
(b) charge the Buyer interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 for the period of late payment.
5.5 All amounts due under this agreement shall be paid by the Buyer to the Seller in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.6 The Seller may at any time, without notice to the Buyer, set off any liability of the Buyer to the Seller against any liability of the Seller to the Buyer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. Any exercise by the Seller of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.
5.7 Payment must be made on time, in full, and without any deduction, set off or counterclaim. In the event that the Buyer fails to make payment in accordance with these terms, the Seller will refer the matter to its debt collection agents. Any costs incurred to collect the debt will be added to the debt, plus VAT at the prevailing rate. The Buyer agrees, in the event of late payment, to be liable for such costs. The Buyer also agrees to pay interest on such costs in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
6.1 The Seller shall deliver the Goods to the Buyer’s address or such other location as may be advised by the Buyer prior to delivery (Delivery Location) on the Delivery Date .
6.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
6.3 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 whatsoever.
6.4 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.
6.5 If the Buyer fails to take delivery of the Goods on the Delivery Date, then:-
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the Delivery Date; and
(b) the Seller shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
6.6 If, 10 Business Days after the Delivery Date, the Buyer has not taken delivery of the Goods the Seller may resell or otherwise dispose of part or all of the Goods and charge the Buyer for any shortfall.
6.7 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.
6.8 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.
7. Title and Risk
7.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
7.2 Title to the Goods shall not pass to the Buyer until the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer in respect of which payment has become due in which case title to the Goods shall pass at the time of payment of all such sums.
7.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
(a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
(d) give the Seller such information relating to the Goods as the Seller may require from time to time, including the right of inspection.
7.4 If before title to the Goods passes to the Buyer the Buyer is deemed to be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1996 (or, if being an individual or partnership the equivalent provisions) then, without limiting any other right or remedy the Seller may have the Seller may at any time:
(a) require the Buyer to deliver up all Goods; and
(b) 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.
8.1 The Seller’s liability to the Buyer shall in no circumstances exceed the Price.
8.2 Nothing in these Conditions shall limit or exclude the Seller’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation; or
(c) any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
9. Governing law and Jurisdiction
9.1 The governing law of this contract shall be the law of England and Wales.
9.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Works or these Conditions (including non-contractual disputes or claims)
10. Third Party Rights
Nothing in this Contract confers or purports to confer on any third party any benefit or any right to enforce any term of this Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.