GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS
1.1 In these conditions;
1.1.1 ‘The Buyer’ means the person, firm or company who accepts a quotation from the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.
1.1.2 ‘The Goods’ means the items materials or goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these conditions.
1.1.3 ‘The Seller means SW Advanced Flooring, which gives a quotation to the Buyer or which accepts an order from the Buyer. ‘The 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.
1.1.4 ‘The Contract’ means the contract for the purchase and sale of the goods.
1.1.5 ‘Writing’ includes telex, cable, email, online order, facsimile transmission and comparable means of communication.
1.2 Any reference on these conditions to any provision as a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these conditions are for convenience only and shall not affect their interpretation.
2. BASIS OF THE SALE
2.1 The Seller shall sell and the Buyer shall purchase the goods in accordance with any oral or written quotation of the Seller which is accepted by the Buyer, or any oral or written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made by the Buyer.
2.2 No variation in these conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 The Sellers employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into Contract the Buyer acknowledges that it does not rely on, and waves any claim for breach of, any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents auto the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyers own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, website, 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 The Buyer shall be responsible to the Seller ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and 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.
3.2 The quantity, quality and description of any specification for the Goods shall be those set out in the Sellers quotation (it accepted by the Buyer) or the Buyers order (if accepted by the Seller).
3.3 If the Goods 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 indemnity the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Sellers use of the Buyers specification.
3.4 The Seller reserves the rights to make any changes in the specifications of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Sellers specification which do not materially affect their quality or performance.
3.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnity 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.
4. PRICE OF THE GOODS
4.1 The price of the Goods shall be the Sellers quoted price or, where no price has been quoted (or a quoted price is no longer valid). The price listed in the Sellers price list current at the date of delivery of the Goods. Where the Goods are supplied for export from the United Kingdom, the Sellers published export price list shall apply. All prices quoted are valid for 24 hours only or until earlier acceptance by the Buyer, or for the period stated in the quotation therefore it different after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond control of the Seller (such as without limitation, any foreign exchange fluctuation, currency regulation, alteration in duties, significant increase in the cost of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is required by delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Accept as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are quoted by the Seller on the basis of ‘Delivered to Buyers premises’.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be( the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deductions (on the date agreed for payment and stipulated on the Sellers invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not been passed to the Buyer. The time of payment of the price shall be of the essence of the contract. Receipts for payment will be issued upon request.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1 Cancel the contract or suspend any further deliveries to the Buyer
5.3.2 Appropriate any payment made by the Buyer is such of the Goods (or the Goods supplied under any other contract between the Buyer and the Seller( as the Seller may think fit (notwithstanding any purported appropriation by the Buyer) and,
5.3.3 Charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 percent per annum above Barclays Bank base rate from time to time until payment in full is made (a part month being treated as a full month for the purpose of calculating interest).
6.1 Unless otherwise agreed delivery of the Goods shall be made by the Seller delivering the Goods to the Buyer’s premises or at such other premises as may be agreed at the time of contract.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not liable for any delay in delivery of the Goods howsoever caused Time for delivery shall not be of the essence unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Sellers reasonable control or the Buyers fault, and the Seller is accordingly liable to the Buyer, the Sellers liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery otherwise than by reason of any cause beyond the Buyers reasonable control or by reason of the Sellers fault then without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 Store the Goods until actual delivery and charge the Buyer for the reasonable costs of transport storage insurance and interest on monies due but unpaid, or
6.5.2 Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer
7.1.1 In the case of Goods to be delivered at the Sellers premises, at the time when the Seller notifies the Buyer that the Goods are available for collection or
7.1.2 In the case of Goods to be delivered otherwise than at the Sellers premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the Property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared tends payment in full of the price of the Goods and all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the buyer shall hold the Goods as the Sellers fiduciary and bades, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Sellers property. Until that time the Buyer shall be entitled to the resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of the sale or otherwise of the Goods, whether tangible or un-tangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without any prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8. WARRANTIES AND LIABILITY
8.1 Subject to the conditions set out below the Seller warrants that at the time of delivery the Goods will correspond with their specification and will be free from defects in material and workmanship. On new Goods a warranty of 12 months and on second-hand Goods a warranty of 3 months will apply.
8.2 The above warranty is govern by the Seller subject to the following conditions:
8.2.1 The Seller shall be under no liability in respect of any defect arising from any drawing, design or specification supplied by the Buyer.
8.2.2 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Sellers instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Sellers approval.
8.2.3 The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price of the Goods has not been paid by the due date for payment.
8.2.4 The above warranty does not extend to any Goods not manufactured or processed 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.
8.3 Subject as expressly provided in these Conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions Restrictions on Statements Order 1976) the statutory rights of the Buyer are not affected by these Conditions.
8.5 The Buyer where practicable inspect the Goods on delivery and sign the delivery note to the effect that he has received and inspected the Goods. If neither the Buyer nor his authorised representative is available to sign the delivery note for that purpose then the Sellers delivery driver shall be deemed to be authorised to sign which is based on any defect in the quality or condition of the Goods of their failure to correspond with specifications shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 5 days from the date of delivery or failure ought reasonably to have been discovered, If delivery is not refused and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.6 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or at the Sellers 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.
8.7 Except in death or personal injury caused by the Sellers negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or ether term, or any duty at common law, or under the express terms of the Contract, for any consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
8.8 FORCE MAJEURE:
The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Sellers obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Sellers reasonable control. Without prejudice to the generally of the foregoing, the following shall be regarded as cause beyond the Sellers reasonable control:
8.8.1 Act of God, explosion, flood, tempest, fire or accident.
8.8.2 War or threat of war, sabotage, insurrection civil disturbance or requisition.
8.8.3 Acts, restrictions, regulations, bye-laws, prohibitions or measures of any land on the part of any government, parliamentary or local authority.
8.8.4 Import or export regulations or embargoes.
8.8.5 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party.
8.8.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery.
8.8.7 Power failure or breakdown in machinery.
8.8.8 Extreme weather conditions affecting delivery of goods including snow, ice,fog.
9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trademark or other industrial or intellectual property rights of any other person, the Seller shall indemnity the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer In connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
9.1.1 The Seller is given full control of any proceedings or negotiations in connection with any such claim.
9.1.2 The Buyer shall give the Seller all reasonable assistance for the purpose of any such proceedings or negotiations.
9.1.3 Except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise and such proceedings without the consent of the Seller (which shall not be unreasonably withheld)
9.1.4 The buyer shall do nothing which would or might violate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recover any sums under any such policy or cover (which the Buyer shall use its best Endeavour to do).
9.1.5 The Seller shall be entitled to the beneft of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claims and,
9.1.6 With prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs and expenses for which the Seller is liable to indemnity the Buyer under this clause.
10.1 If either party in the Contract:
10.1.1 Has a Receiver or Administrative Receiver appointed if any of its property or business undertaking; or
10.1.2 Announces that it has ceased or will or intend to cease to trade (except where such announcement is due to a forthcoming retirement whilst honouring all existing contracts), or
10.1.3 Suspends payment of its debts or fails to pay, is unable to pay or admits or states its inability to pay its debts as they fall due; or
10.1.4 Disposes or threatens to dispose of all or a material part of its assets whether by one or a series of transactions (other than for the sole purpose stand followed by reconstruction or amalgamation made known to and approved by the other party), or
10.1.5 Convenes, or holds a meeting of its creditors or makes any arrangement, voluntary arrangement or composition with its creditors, or
10.2.1 The directors of one party make or state an intention to make or give notice of a proposal for voluntary arrangement under Part I of the Insolvency Act 1966, or
10.2.2 A petition is presented for winding-up or administration of one party, or
10.2.3 A resolution (other than for the sole purpose of and followed by reconstruction or amalgamation of one party of which notice has been given to the other party who has approved it). Is passed for the voluntary winding-up of one party, or
10.2.4 One party is dissolved, or
10.2.5 A statutory Demand in bankruptcy is served on one party, or
10.2.6 An Interim Order under Part Vii of the Insolvency Act 1966 is applied for or made in respect of one party, or
10.2.7 A bankruptcy petition is presented against one party, or
11.2.8 A party suffers the levy of enforcement of any execution, distress, sequestration, detention, or other process from any of its property or premises, or
10.2.9 A party being a partnership any of the above events occurs with respect to the partnership or to any partner therein, then notwithstanding any previous arrangements with the other party for deferred payments the full or tall remaining price for any Goods delivered by the innocent party shall have the right upon giving written notice to the other party without prejudice to any other rights and remedies available to it forthwith to cancel and/or suspend or to refuse to accept any further deliveries and / or to terminate the Contract at any time after becoming aware of the above circumstances.
10.3 Whenever any of these rights are exercised by the innocent party, the innocent party will not be liable to pay any compensation to the other party.
11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be In writing addressed to that other party at its registered office or principal place of business or such other addresses may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered ass waiver of any subsequent breach of the same or any other provision.
11.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.4 Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default of agreement) nominated on the application of either party by the president or if he is not available the vice-president for the time being The British Healthcare Trades Association in accordance with the rules of that association.
11.5 The Contract shall be governed by the laws England and Wales or of Scotland depending on the address of the branch of the Seller where the Contract was made.
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