TERMS AND CONDITIONS (GOODS) Business Use Only

Definitions:

Contract: contract between the Customer and the Supplier for the sale and purchase of goods (Goods) in accordance with these terms and conditions.

Customer: person or firm who purchases the Goods from the Supplier

Order: a verbal or written order by the Customer for the Goods.

Supplier: Walter Bailey (Par) Ltd a Private Limited Company registered in England and Wales with Company Number 00202508.

Statement Date:  the date of a monthly statement detailing invoices raised by the Supplier to the customer during the previous month.

1. Contract

1.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

1.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions.
1.3 The Order shall be deemed to be accepted when the Supplier supplies or agrees to supply the Goods.

1.4 The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.

1.5 A quotation for the Goods given by the Supplier shall not constitute an offer.

2. Goods

2.1 The Supplier warrants that on delivery (Warranty) the Goods shall:

2.1.1 conform in all material respects with their description; and

2.1.2. be free from material defects in design, material and workmanship and be of satisfactory quality within the meaning of the Sale of Goods Act 1979.

2.2 Subject to clause 2.3, if:

2.2.1 the Customer gives notice in writing to the Supplier that some or all of the Goods do not comply with the Warranty set out in clause 2.1:

2.2.1.1  within 5 Business Days of Delivery if the defect is apparent on inspection; or

2.2.1.2  in the case of a latent defect within a reasonable time after the latent defect has become apparent;

2.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and

2.2.3 the Customer (if reasonably asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,

the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

2.3 The Supplier shall not be liable for Goods’ failure to comply with the Warranty set out in clause 2.1 in any of the following events:

2.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 2.2;

2.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

2.3.3 the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;

2.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
2.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
2.3.6 the Goods differ from the description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
2.4 Except as provided in this clause 2, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 2.1.
2.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
2.6 These conditions shall apply to any repaired or replacement goods supplied by the Supplier.

3. Indemnity

The Customer shall indemnify the Supplier against all claims and expenses suffered by the Supplier resulting from any breach of the Customer’s obligations within the Contract.

4. Delivery

4.1 The Customer shall collect the Goods from the Supplier’s premises at Walter Bailey (Par) Limited, St. Andrew’s Road, Par, Cornwall, PL24 2LX (Supplier Premises) within 3 Business Days of the Supplier notifying the Customer that the Goods are ready (Supplier Notification) or such other location as may be requested by the Customer at the time of the Order (Delivery Location).

4.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Supplier Premises or the Delivery Location (as the case may be).

4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.4 If the Customer fails to take delivery of the Goods from the Supplier Premises within three Business Days of the Supplier Notification then the Supplier shall store the Goods up to 10 Business Days from the date of the Supplier Notification, and charge the Customer for all related costs and expenses (including insurance).

4.5 If the Customer has not taken delivery of the Goods within those 10 Business days, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

4.6 The Supplier 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 Customer to cancel any other instalment.

4.7  The Customer shall acknowledge receipt of the Goods at the time of collection from the Supplier Premises or on arrival of the Goods at the Delivery Location (as the case may be). Failure by the Customer to acknowledge receipt of the Goods shall not prevent the Goods being deemed delivered in accordance with this clause 4.

5.  Title and Risk

5.1 The risk in the Goods shall pass to the Customer on completion of delivery.

5.2 Title to the Goods shall not pass to the Customer until the earlier of:

5.2.1 the Supplier receives payment in full

(in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer 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; and

5.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 5.4.

5.3 Until title to the Goods has passed to the Customer, the Customer shall:

5.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;

5.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

5.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

5.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 7.1; and

5.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.

5.4 Subject to clause 5.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:

5.4.1 it does so as principal and not as the Supplier’s agent; and

5.4.2 title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.

5.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 7.1, then, without limiting any other right or remedy the Supplier may have:

5.5.1 the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and

5.5.2 the Supplier may at any time:

(a) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and

(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

6.  Price and Payment

6.1 The price of the Goods shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.

6.2 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.

6.3 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

6.4 The Customer shall pay invoices in full and in cleared funds within 30 days of the first Statement Date which includes details of the relevant invoices (“the Payment Period”). Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.

6.5 If the Customer fails to make any payment due to the Supplier under the Contract by the end of the Payment Period, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Lloyds Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the first day after the end of the Payment Period until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

6.6 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

7. Termination

7.1 The Contract may be terminated forthwith at any time by the Supplier on written notice to the Customer if:

7.1.1 the Customer commits a material breach, or series of breaches resulting in a material breach, of the Contract and such breach is not remediable or if capable of remedy is not remedied within 15 days of written notice to do so;

7.1.2 the Customer becomes bankrupt;

7.1.3 the Customer suspends or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due;

7.1.4 the Customer (a) negotiates with its creditors for rescheduling of its debts, (b) makes a proposal to or compounds with its creditors in respect of its debts or (c) makes an application to court for protection from its creditors generally;

7.1.5 the Customer passes a resolution for winding-up or for the appointment of an administrator, or a step is taken to appoint a liquidator or administrator in relation to the Customer, or a step is taken to obtain a winding-up order in relation to the Customer;

7.1.6 a step is taken to appoint a receiver or administrative receiver in relation to the Customer or any of its assets;

7.1.7 any creditor of the Customer attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the Customer’s assets, and such attachment or process is not discharged within 14 days;

7.1.8 the Customer takes or suffers any action similar to any of the above in any jurisdiction;

7.1.9 there is a material change in the management, ownership or control of the Customer;

7.1.10 the Customer suspends trading, ceases to carry on business, or threatens to do either; or

7.1.11 the Customer (being an individual) dies or ceases to be capable of managing his own affairs.

7.2 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s unpaid invoices and interest:

7.2.1 the Customer will forthwith return any materials of the Supplier then in its possession or control; if it fails to do so, the Supplier may enter onto any premises owned by or under the control of the Customer and take possession of them;

7.2.2 the accrued rights and liabilities of the parties will not be affected; and

7.2.3 any clause which expressly or by implication is to survive termination will do so.

8. Limitation of Liability

8.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

8.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

8.1.2 fraud or fraudulent misrepresentation;

8.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;

8.1.4 defective products under the Consumer Protection Act 1987; or

8.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

8.2 Subject to clause 8.1 the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract and  the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.

9. Force Majeure

Neither party shall be liable to the other for any delay or failure in performing its obligations under the Contract to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable, provided that the Supplier and Customer shall use all reasonable endeavours to cure any such events or circumstances and resume performance under the Contract.

10. Assignment

The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.

11. Notices

11.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.

11.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.

11.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

12. Severance

If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

13.Waiver

A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14. Third Party Rights

A person who is not a party to the Contract shall not have any rights under or in connection with it.

15. Variation

Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.

16. Governing law and jurisdiction.

The Contract, and any dispute or claim arising out of or in connection with it shall be governed and construed by the law of England, with exclusive jurisdiction of the courts of England and Wales.