CONDITIONS OF SALE – A N WALLIS & CO LIMITED (the “Seller”)
- Formation and Interpretation
In these Conditions:
1.1: “Buyer Responsibilities” means the responsibilities of the Buyer specified in the Service Specification; “Contract” means any contract for the supply of the Goods and/or Services between the Seller and Buyer in accordance with these Conditions; “Deliverables” means the deliverables specified in the Service Specification; “Force Majeure” means any occurrence which hinders, delays or prevents the Seller in performing any of its obligations under a Contract and which is beyond the reasonable control of the Seller, including (without limitation): governmental actions, war, emergency, civil disturbance, terrorism, Act of God, fire, explosion, flood, epidemic, accident; power failure, breakdown of machinery, import or export embargo; labour dispute; national shortage of materials, fuel, parts, machinery or labour; “Goods” means the goods (or any part of them) purchased by the Buyer as set out in an Order; “Group” means a company, its holding company and ultimate holding company and each of its subsidiary companies and joint ventures and its holding company’s and ultimate holding company’s subsidiary companies and joint ventures from time to time, “holding company” and “subsidiary” having the meanings given to them in section 1159 of the Companies Act 2006; “IPR” means all registered or unregistered rights to exploit intellectual property worldwide including patents, trademarks, registered designs, design rights and copyright, moral rights, rights in computer software, rights in databases, rights in information, trade secrets, inventions, know-how, trade names, domain names, goodwill, the right to bring an action for passing off and any rights of a similar nature or having equivalent effect; “Order” means the Buyer’s order for the supply of Goods and/or Services, as set out in the Buyer’s purchase order form, or the Buyer’s written acceptance of the Seller’s quotation, as the case may be; “Services” means the services, including the Deliverables, supplied by the Supplier to the Buyer as set out in the Service Specification; and “Service Specification” means the description or specification for the Services provided in writing by the Seller to the Buyer.
1.2: All Contracts, however formed, incorporate these Conditions to the exclusion of all other terms or conditions that the Buyer seeks to impose or incorporate or introduce, or which are implied by law, custom, practice, or course of dealing. Accordingly, no other terms and conditions are binding on the Seller and the Buyer waives any right to rely on any other such terms and conditions. The Seller’s performance of a Contract is conditional on the Buyer accepting these Conditions as written without amendment. The Seller’s pre-contractual quotations are non-binding.
1.3: The construction, performance, validity, and all aspects of each Contract are governed by English law and the parties accept the exclusive jurisdiction of the English courts.
1.4: No variation to these Conditions shall be binding unless agreed in writing between a director of the Buyer and the Seller.
1.5: Each party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in these Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Conditions.
1.6: The Seller reserves the right at any time to alter and amend any errors or omissions to the Seller documentation or documentation relating to the Contract.
2. Orders and Specifications
2.1: An Order consists of an offer by the Buyer to purchase the Goods and/or Services in accordance with these Conditions.
2.2: An Order shall only be deemed to be accepted when the Seller issues written acceptance (by the Seller’s authorised representative) of an Order, at which point a Contract shall come into existence.
2.3: A Contract constitutes the entire agreement between the Buyer and Seller. The Buyer acknowledges that condition 1.5 shall apply to each Contract and accordingly it has not relied on any statement, representation, or assurance, given by or on behalf of the Seller, which is not set out in the Contract.
2.4: The Seller relies on the Buyer to place an accurate Order. The Buyer shall solely be responsible for ensuring that the terms of an Order are complete and accurate and adequate for the Goods and/or Services purchased. The Buyer will also provide the Seller any necessary information relating to the Goods and/or Services within a sufficient time to enable the Seller to perform a Contract. The Seller is not liable for (i) any omission in an Order; or (ii) loss arising from any imprecision in an Order.
2.5: The Buyer has no right to cancel an Order unless expressly agreed in writing by an authorised representative of the Seller. If an Order is cancelled in accordance with this clause, without limiting any other remedies, the Buyer shall be responsible for costs (including the cost of all labour and materials used) payable and all expenses incurred by the Seller up to the date of cancellation, together with all costs, losses and liabilities arising. If an Order relating to the provision of Services is cancelled on less than 48 hours’ notice, the Buyer shall be liable to pay a cancellation charge equivalent to charges applicable in respect of two days per member of staff of the Seller directly engaged in providing the Services and in addition all expenses reasonably incurred, including, but not limited to travelling expenses, hotel costs, subsistence, and associated expenses. In accordance with clause 4, such expenses shall be charged at cost plus 10%. If the Buyer cancels an Order, the Buyer shall have no further recourse against the Seller.
3.1: The Goods are described in the Seller’s catalogue published from time to time.
3.2: Where Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification information and/or instructions submitted by the Buyer, the Buyer shall fully indemnify the Seller and keep it indemnified against all liability, losses, costs, claims, damages and expenses suffered directly or indirectly by the Seller arising out of any infringement or alleged infringement of the IPR or other rights of any third party in relation to Goods and/or Services supplied to the specifications, information and/or instructions of the Buyer.
3.3: Where the Buyer instructs the Seller to use specific materials in the Goods and the Buyer acts contrary to the Sellers instructions and/or advice in relation to the use of such materials, the Seller accepts no liability for the Buyer’s failure to follow the Seller’s advice and/or instructions in such circumstances.
3.4: The Seller reserves the right at any time to alter the specification of the Goods to conform with any applicable laws, standards or otherwise (including any EC requirements).
4.1: Delivery of the Goods shall be completed on the arrival of the Goods, ex-works, at the location set out in an Order accepted by the Seller. Loading and where required unloading of Goods is the responsibility of the Buyer and which shall be completed at its cost.
4.2: Any dates quoted for delivery of the Goods are approximate only, and time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods. The Buyer has no right to damages or to cancel a Contract for late delivery.
4.3: Before using or installing the Goods, the Buyer must inspect the Goods. The Goods are deemed accepted as soon as Buyer has had sufficient time to inspect them and, in any event, within 5 days following delivery. No compensation is due for shortage or defect unless a written complaint is received within 5 days of delivery. After acceptance, the Goods cannot be rejected. Where any claim is notified to the Seller in accordance with this clause, the parties shall follow the process set out on clause 4.4.
4.4: The Seller shall, on being given reasonable opportunity of examining such Goods or workmanship, be entitled to replace the Goods (or the part in question) or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer in relation to such Goods.
4.5: The Buyer is not entitled to reject the Goods if the Seller delivers up to and including 5% more or less than the quantity ordered, but a pro rata adjustment shall be made to the invoice on receipt of notice from the Buyer that the wrong quantity was delivered. The Seller may charge for the containers and packaging or require that they are returned to the Seller.
4.6: 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.
4.7: If the Buyer declines to accept delivery or fails to give the Seller adequate delivery instructions then, the Buyer must pay for the Goods, meet all of the Seller’s storage and/or disposal charges (including insurance), and, if requested by the Seller, sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Seller for the excess over the price under a Contract.
5. Quality of Goods
5.1: Subject to clause 5.2, the Seller warrants that on delivery, and for a period of 12 months (the warranty period) from the date of delivery, the Goods shall: (a) conform in all material respects with their description; and (b) be free from material defects in design, material and workmanship.
5.2: Subject to clause 5.3, if the Buyer gives notices in writing during the warranty period given in clause 5.1 within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in 5.1, the parties shall follow the process set out on clause 4.4.
5.3: The Seller shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1, if:
5.3.1: The Buyer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2: The defect arises from fair wear and tear; wilful damage; mechanical, electrical, electrolytic or other damage not due to a defect in the Goods; negligence of the Buyer or its employees or agents; or abnormal working conditions.
5.3.3: The defect arises from the failure to properly install or service the Goods; the use of the Goods in conjunction with parts not pre-approved by the Seller; or the use of the Goods in applications for which they are not designed.
5.3.4: The defect arises because the Buyer failed to follow the Seller’s instructions and/or warnings (whether oral or in writing) in relation to the Goods; and/or
5.3.5: The defect arises due to the Buyer’s misuse or alteration, reconditioning or repair of the Goods without the Seller’s approval.
5.4: The warranty in clause 1 does not extend to parts, materials or equipment not manufactured by the Seller as identified in the Order accepted by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller to the extent this is intended to benefit the Buyer and is notified to the Buyer.
5.5: 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.
6. Risk and Property
6.1: Risk of damage, loss or deterioration of the Goods passes to the Buyer on delivery. The Buyer is responsible for damage, loss, or deterioration of Goods following delivery. The Buyer must insure the Goods accordingly.
6.2: Title (legal and equitable) to the Goods passes to the Buyer only on the Buyer paying in full all sums (including interest) due to the Seller under all Contracts between the Seller and the Buyer.
6.3: The Seller may recover Goods in respect of which title has not passed at any time and the Buyer irrevocably allows the Seller and its agents to enter any premises, with or without vehicles, to recover such Goods. Until title has passed to the Buyer the Goods must be kept by the Buyer as fiduciary agent and bailee of the Seller and must be stored separately from other goods clearly identifiable as belonging to the Seller. Before the title has passed, the Seller may claim the price of the Goods when due. If the Buyer sells Goods prior to title passing, the Buyer shall account to Seller for the resulting proceeds of sale.
7. Supply of Services
7.1: The Seller shall provide the Services to the Buyer in accordance with the Service Specification in all material respects.
7.2: The Seller warrants to the Buyer that the Services shall be provided using reasonable care and skill.
7.3: The Seller shall use all reasonable endeavours to meet any performance dates for the Services specified in an Order accepted by the Seller, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.4: The Seller shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Seller shall notify the Buyer in any such event.
7.5: The Services shall be performed, and Deliverables are provided solely for the Buyer and not to or for any third party.
7.6: The Buyer’s rights to use Deliverables is conditional upon the Buyer paying in full all sums (including interest) due to Seller under all Contracts between the Buyer and the Seller.
7.7: The Buyer shall co-operate with the Seller in all matters relating to the Services. The Buyer must in addition perform the Buyer Responsibilities.
7.8: The Seller shall have no liability to the extent that Seller is prevented from performing Services because the Buyer Responsibilities have not been performed.
7.9: If the Seller is fails to perform the Services, or is unable to perform the Services, as a result of any breach by the Buyer of the terms of a Contract, the Seller shall be entitled to relief from its obligations to perform, and shall not be in breach of these Conditions, and the Buyer shall pay the Seller an amount equivalent to the amount of all abortive expenditure actually incurred by the Seller plus a 10% uplift or margin on such costs.
7.10: The Buyer shall ensure that its facilities are fully equipped and suitable for the purpose of the Seller performing the Services. The provision of power, communication, and IT connectivity, to the facilities shall be provided by the Buyer free of charge. The Seller shall be allowed free access to and from the premises or facilities of the Buyer in connection with the performance of the Services and the Buyer shall procure such access (including entering to all such access agreements required with landowners or landlords). The Buyer must obtain and maintain all necessary licences, permissions, and consents, which may be required for the provision of Services before the date on which the Services are due to commence and where the Services are performed.
7.11: At its cost, the Buyer must supply equipment necessary for the performance of the Services as detailed in the Buyer Responsibilities. The Buyer shall ensure safe, secure working conditions and premises for performance of the Services.
8.1: The price of the Goods and/or Services shall be specified in an Order accepted by the Seller. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after such 30-day period they may be altered by the Seller without giving notice to the Buyer.
8.2: Prior to the acceptance of an Order, prices may be varied to reflect: (i) any increase in the cost to the Seller in supplying the Goods and/or Services generally due to any factor beyond the control of the Seller (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (ii) any change requests to an Order by the Buyer; and/or (iii) due to delayed, incorrect, or insufficient information provided to the Seller.
8.3: Prices are ex works unless otherwise stated in an Order accepted by the Seller and are exclusive of any applicable value added tax or other duties, which shall be paid at the applicable rate in addition to the price.
8.4: The Seller shall be entitled to charge the Buyer for any expenses reasonably incurred by the Seller in connection with the provision of the Services including, but not limited to, travelling expenses, hotel costs, subsistence, for the cost of any third party materials purchased in connection with the provision of the Services, and any other associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services. Such charges shall be charged at cost plus 10% in addition to price for Services.
9. Terms of Payment
9.1: The Seller may invoice the Buyer at any time for the price of the Goods and/or Services or part of it. The Buyer shall pay the invoice in pounds sterling (in full without set off, counterclaim or any other deduction or withholding). The Buyer shall pay each invoice in accordance with the payment terms detailed in an Order accepted by the Seller, and if no such terms are detailed, within 30 days of the date of invoice. Time for payment shall be of the essence.
9.2: If the Buyer fails to make any payment when due, without prejudice to any other right or remedy available to the Seller, the Seller may, at its sole discretion, cancel a Contract; suspend any further deliveries of the Goods or performance of the Services; and/or charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate per year of 5% above Barclays base rate from time to time compounded monthly, until payment in full is made.
10. Intellectual Property and Confidentiality
10.1: The Seller reserves all rights, title and interest in and to all IPR in the Goods, Services, Deliverables and related drawings, designs, specifications, and data and all such rights shall vest in and shall otherwise be owned by the Seller absolutely. The Buyer shall not modify the Goods or packaging, nor remove, or tamper with trademarks used on or in relation to the Goods.
10.2: The Buyer and the Seller shall keep in confidence technical or commercial know-how, specifications, inventions, processes, or initiatives, which are of a confidential nature in relation to and belonging to the other party and any other confidential information concerning either party’s business or its products which either party may obtain from the other. Neither party shall use such information for any purpose other than to perform its obligations under a Contract. Either party may disclose such information: (i) to its employees, representatives, or subcontractors who need to know such information for the purposes of carrying out the party’s obligations under a Contract; and (ii) as may be required by law, court order or any governmental or regulatory authority.
11.1: All warranties, conditions or other terms implied by statute or common law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
11.2: Nothing in a Contract will limit or exclude Seller’s liability for death or personal injury caused by negligence, for fraud or fraudulent misrepresentation, and/or for any other loss or damage the exclusion or limitation of which is prohibited by English law.
11.3: The Seller is not liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for indirect or consequential losses, special loss, loss of profits, damage to goodwill, economic loss, business interruption, wasted expenditure, loss of business, or loss of opportunity, arising under or in connection with a Contract.
11.4: The Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with a Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid by the Buyer under a Contract.
11.5: The Seller is not liable: (i) until the Seller has received payment in full under the Contract; (ii) if Buyer does not store and use the Goods suitably; (iii) for Goods supplied in accordance with Buyer’s specification or drawings; or (iv) for any certificates passed on or issued by or on behalf of Seller in relation to the Goods and/or Services.
11.6: The Buyer shall indemnify the Seller, its employees, agents and sub-contractors against loss or damage to any property or injury or death of any person caused by any negligent act or omission or wilful misconduct of the Buyer, its employees, agents, or sub-contractors.
12. Force Majeure
12.1: The obligations of the Seller shall be suspended during the period and to the extent that the Seller is prevented or hindered from complying with them by Force Majeure.
12.2: The Seller may charge the Buyer for, in addition to the price, any costs incurred because of any delay, which was due to any cause beyond the Seller’s reasonable control.
13.1: The Seller may terminate or suspend a Contract by giving written notice if: (i) the Buyer fails to pay money when due and payable; (ii) the Buyer breaches the terms of a Contract or any other Contract; (iii) the Buyer ceases or threatens to cease carrying on business; (iv) the Buyer is declared or becomes insolvent or bankrupt, enters into receivership, administration, liquidation, administrative receivership or has a moratorium declared in respect of any of its indebtedness, or threatens to do any of the above; (v) the Seller has legitimate concern regarding the financial standing of the Buyer; (vi) in the Seller’s opinion Buyer is unable to fulfil its obligations under a Contract; (vii) any of the above is about to occur; or (viii) if the Seller so decides for any other reason.
13.2: Termination of a Contract is without prejudice to rights and duties arising prior to termination and without prejudice to any other Contract in force.
13.3: If the Buyer terminates a Contract without lawful cause, the Buyer shall indemnify the Seller for all liabilities and losses incurred by the Seller, including loss of profit.
13.4: On termination of a Contract, if the Goods and/or Services have been delivered but not paid for the price shall become immediately due and payable.
14.1: The Seller may perform any of its obligations or exercise any of its rights under a Contract (in whole or in part) by itself or through any other member of its Group. The Seller may assign the terms of a Contract to any member of its Group.
14.2: The Buyer shall not assign, transfer, sub-contract or delegate its rights or obligations under any Contract.
14.3: The Buyer warrants and represents to the Seller that it shall comply with all applicable laws, regulations, codes, and sanctions relating to anti-bribery and anti-corruption, including the Bribery Act 2010 (BA 2010); maintain its own policies and procedures, including but not limited to adequate procedures under the BA 2010; and not engage in any activity, practice, or conduct which would constitute and offence under the BA 2010. The Seller shall be entitled to terminate any Contract immediately for breach of this clause without incurring any liability for such termination.
14.4: No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. Failure to enforce a provision is not a waiver or any of the Seller’s rights under a Contract.
14.5: Unenforceable Conditions shall not affect the enforceability of the other provisions of these Conditions and/or a Contract. The Seller’s remedies are cumulative and not exclusive. Losses recoverable by the Seller shall include losses incurred or suffered by its suppliers.
14.6: A person who is not party to a Contract has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of a Contract.
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