PART A. CONSUMER TERMS AND CONDITIONS
The Terms in this Part A only apply to consumers using our website and do not apply to business customers. If you are a business customer purchasing products from our website our business terms and conditions in Part B apply- please click here to see a copy.
This Part A (together with our A1. Information About Us
A1.1 We operate the website www.progarm.com. We are Progarm Limited, a company registered in England and Wales under company number 08552746 and with our registered office and main trading address at Unicorn House, Broad Lane, Gilberdyke, Brough, HU15 2TS. Our VAT number is 156609101.
A1.2 If you wish to contact us for any reason, including because you have any complaints, you can contact us by writing to us at the above address, by telephoning our Customer Services team at 01482 679600 or by e-mailing them at email@example.com.
A1.3 If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide to us in your order.
A2. Our Products
A2.1 The images of the Products on our website are for illustrative purposes only. Although we have made every effort to display the Products accurately, we cannot guarantee that your computer’s display of images of the Products accurately reflects the appearance of the Products. Your Products may vary slightly from those images.
A2.2 Although we have made every effort to be as accurate as possible, all sizes, weights, capacities, dimensions and measurements indicated on our website have a 2% tolerance.
A2.3 The packaging of the Products may vary from that shown on images on our website.
A3. Use of Our Website
A4. How We Use Your Personal Information
We only use your personal information in accordance with our Privacy and Cookies Policy (a copy of which can be accessed by clicking here). Please take the time to read our Privacy and Cookies Policy, as it includes important terms which apply to you.
A5. How a Contract Is Formed Between You and Us
A5.1 Our website will guide you through the steps you need to take to place an order with us. Our order process allows you to check and amend any errors before submitting your order to us. Please take the time to read and check your order at each stage of the order process.
A5.2 After you place an order using our website, you will receive an e-mail from us acknowledging that we have received your order. However, please note that this does not mean that your order has been accepted. Our acceptance of your order will only take place as described in clause A5.3 If you do not receive an acknowledgement email within one working day (being Monday to Friday excluding public holidays in England) of placing an order, please email us at firstname.lastname@example.org (quoting as much information as possible about your order) and we will endeavour to assist.
A5.3 We will confirm our acceptance of your order to you by sending you an e-mail that confirms that the Products have been dispatched (“Dispatch Confirmation”). A Contract between us will only be formed when we send you the Dispatch Confirmation. We reserve the right to refuse your order or to restrict the number of Products you may order.
A5.4 If we are unable to supply you with any Product, for example because that Product is not in stock or no longer available, because we cannot meet any requested delivery date or because of an error of the nature referred to in clause A10.4 – we will inform you of this by e-mail and we will not process your order unless you and we otherwise agree. If you have already paid for the Products subject of that order, we will refund you the full amount (including any delivery costs charged) as soon as possible.
A6. Our Right to Vary These Terms
A6.1 We may amend these Terms from time to time. Please look at the top of this page to see when these Terms were last updated.
A6.2 Every time you order any Products from us, the Terms in force at the time of your order will apply to the relevant Contract between you and us.
A6.3 We may revise these Terms as they apply to any Contract between us from time to time to reflect any changes in relevant laws and regulatory requirements.
A6.4 If we have to revise these Terms as they apply to any Contract between us pursuant to clause A6.3 above, we will contact you to give you reasonable advance notice of the changes and let you know how to cancel the relevant Contract if you are not happy with the changes. You may cancel either in respect of the entire Contract or just those Products you have yet to receive under the Contract. If you opt to cancel any Contract in full pursuant to this clause A6.4, you will have to return (at our cost) any relevant Products you have already received and we will arrange a full refund of the price you have paid, including any delivery charges.
A7. Consumer Rights to Return and Receive a Refund
A7.1 You have a legal right to cancel a Contract under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 during the relevant period set out below in clause A7.3. This means that if, during the relevant cancellation period, you change your mind or decide for any other reason that you do not want to receive or keep the Products ordered under any Contract, you can notify us of your decision to cancel the relevant Contract and receive a refund. Advice about your legal right to cancel in such way is available from your local Citizens’ Advice Bureau or Trading Standards office.
A7.2 However, the cancellation right referred to in clause A7.1 above does not apply to:
A7.2.1 any Products that are made to your specification or are clearly personalised;
A7.2.2 Products sealed for health protection or hygiene purposes, once these have been unsealed after you receive them; or
A7.2.3 any Products which become mixed inseparably with other items after their delivery.
A7.3 Your legal right to cancel a Contract starts from the date of the relevant Dispatch Confirmation (the date on which we e-mail you to confirm our acceptance of your order), which is when the relevant Contract between us is formed. Your deadline for cancelling that Contract then depends on what you have ordered and how it is delivered, as set out in the table below:
End of the cancellation period
Your Contract is for a single Product or multiple Products (which are not delivered in instalments on separate days).
The end date is the end of 14 days after the day on which you receive the Product(s).
Example: if we provide you with a Dispatch Confirmation on 1 January and you receive the Product(s) on 10 January you may cancel at any time between 1 January and the end of the day on 24 January.
Your Contract is for either of the following:
The end date is 14 days after the day on which you receive the last instalment of the Product or the last of the separate Products ordered.
Example: if we provide you with a Dispatch Confirmation on 1 January and you receive the first instalment of your Product or the first of your separate Products on 10 January and the last instalment or last separate Product on 15 January, you may cancel in respect of all instalments and any or all of the separate Products at any time between 1 January and the end of the day on 29 January.
Your Contract is for the regular delivery of a Product over a set period.
The end date is 14 days after the day on which you receive the first delivery of the Product.
Example: if we provide you with a Dispatch Confirmation on 1 January in respect of a Product to be delivered at regular intervals over a set period of one year and you receive the first delivery of the Product on 10 January, you may cancel at any time between 1 January and the end of the day on 24 January. 24 January is the last day of the cancellation period in respect of all Products to arrive during the year.
A7.4 To cancel a Contract in accordance with your legal right to do so as set out in this clause A7, you just need to let us know that you have decided to cancel. You can do this by e-mailing our Customer Services team at email@example.com or contacting them by telephone on 01482 679600 or by writing to us at Unicorn House, Broad Lane, Gilberdyke, Brough, HU15 2TS2. If you are emailing us or writing to us please include details of your order to help us to identify it. Please click here for a model cancellation form. [Rollits Note: hyperlink to statutory cancellation form at the foot of this document should be inserted where indicated] to be inserted by boxed red when the sheet is uploaded onto the website. If you send us your cancellation notice by e-mail or by post, your cancellation is effective from the date you send us the e-mail or post the letter to us.
A7.5 If you cancel any Contract we will:
A7.5.1 refund you the price you paid for the Products subject of the Contract. However, please note we are permitted by law to reduce your refund to reflect any reduction in the value of the Products, if such reduction has been caused by you handling them in a way which would not be permitted in a shop (for example, if you remove any labels from the Products). If we refund you the price you paid before we are able to inspect the Products and later discover you have handled them in an unacceptable way, you must pay us an appropriate amount;
A7.5.2 refund any delivery costs you have paid, although as permitted by law, the maximum refund will be the cost of delivery by the least expensive delivery method we offer (provided that this is a common and generally acceptable method). For example, if we offer delivery of a Product within three to five days at one cost but you choose to have the Product delivered within 24 hours at a higher cost, then we will only refund what you would have paid for the cheaper delivery option; and
A7.5.3 make any refunds due to you as soon as possible and in any event within the deadlines indicated below:
(a) if you have received the Products and we have not offered to collect the Products from you: 14 days after the day on which we receive the Products back from you or, if earlier, the day on which you provide us with evidence that you have sent the Products back to us. For information about how to return Products to us, please see clause A7.8 below;
(b) if you have not received the Products or you have received the Products and we have offered to collect the Products from you: 14 days after you inform us of your decision to cancel the relevant Contract.
A7.6 If you have returned the Products to us under this clause A7 because they are faulty or mis-described, we will refund the price of the Products in full, together with any applicable delivery charges and any reasonable costs you incur in returning the item to us.
A7.7 We will refund you on the credit card, debit card or Paypal account you used for payment.
A7.8 If any Product has been delivered to you before you decide to cancel the Contract under which that Product has been delivered:
A7.8.1 you must return the Product to us without undue delay and in any event not later than 14 days after the day on which you let us know that you wish to cancel the relevant Contract. Our return address is Progarm Limited, Unicorn House, Broad Lane, Gilberdyke, Brough, HU15 2TS; and
A7.8.2 unless the Product is faulty or not as described (in such circumstance please see clause A7.6 above), you will be responsible for the cost of returning the Product to us. If the Products cannot be returned by post, we estimate that if you use the carrier which delivered the Products to you, these costs should not exceed the sums we charged you for delivery (unless the Products were delivered to an International Delivery Destination in accordance with clause A9, in which case we will tell you the estimated return costs once we know which Products you wish to order and where the Products are to be delivered to).
A7.9 Because you are a consumer, we are under a legal duty to supply Products that are in conformity with the relevant Contract. As a consumer, you have legal rights in relation to Products that are faulty or not as described. These legal rights are not affected by your right of return and refund in this clause A7 or anything else in these Terms. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office.
A8.1 We will contact you with an estimated delivery date, which will, subject to clause A9, (and unless we otherwise agree with you) be within 30 days after the date of the Dispatch Confirmation (the date on which we e-mail you to confirm our acceptance of your order). We dispatch orders Monday to Friday (excluding public holidays in England) but do not dispatch at weekends. Occasionally our delivery to you may be affected by an Event Outside Our Control. See clause A13 for our responsibilities when this happens.
A8.2 All deliveries must be signed for. By placing an order you are authorising us to accept a delivery signature at your chosen delivery address. If no-one is available at your stated delivery address to take and sign for delivery we (our chosen delivery services provider) will leave a note confirming that we have attempted delivery and information will be provided on when the next delivery attempt will be made. If no-one is available at your stated delivery address to take and sign for delivery on our second delivery attempt we will contact you for further instructions and may charge you for storage costs and any further delivery costs. If, despite our reasonable efforts, we are unable to contact you or re-arrange delivery following our second delivery attempt we may end the Contract.
A8.3 Delivery under a Contract shall be completed when we (or our chosen delivery services provider) deliver the Products subject of the relevant Contract to the address you gave us. The Products will be your responsibility from that time. It is important that this address is as accurate and detailed as possible and where necessary you provide us with any specific delivery instructions when placing your order. We do not accept any liability for any loss or damage to the Products once they have been delivered to the delivery address you have specified and/or in accordance with your instructions given when placing your order.
A8.4 You own the Products once we have received payment in full for the Products, including all applicable delivery charges.
A9. International Delivery
A9.1 In addition to the United Kingdom, we also deliver to Europe. Deliveries outside of Europe are taken on a case by case basis, please contact firstname.lastname@example.org for information regarding this. We will let you know during the order process the estimated delivery date for delivery to an International Delivery Destination (which may not be within 30 days of the Dispatch Confirmation).
A9.2 If you order any Products from our website for delivery to any of the International Delivery Destinations, your order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Please note that we have no control over these charges and we cannot predict their amount.
A9.3 You will be responsible for payment of any such import duties and taxes. Please contact your local customs office for further information before ordering any Products from us.
A9.4 You must comply with all applicable laws and regulations of the relevant International Delivery Destination. We will not be liable or responsible if you break any such law.
A10. Price of Products, Delivery Charges
A10.1 The prices of the Products will be as quoted on our website at the time you submit your order and are in pounds sterling. We take all reasonable care to ensure that the prices of Products are correct at the time when the relevant information is entered onto the system. However please see clause A10.4 for what happens if we discover an error in the price of any Products which you have ordered.
A10.2 The prices for our Products may change from time to time, but any changes will not affect any order you have already placed.
A10.3 The price of each Product includes VAT (where applicable) at the applicable current rate chargeable in the UK for the time being. However, if the rate of VAT changes between the date of your order and the date of delivery, we will adjust the amount of VAT that you pay to the revised amount unless you have already paid for the relevant Products in full before the change in VAT takes effect.
A10.4 The price of each Product does not include any delivery charges. Our delivery charges for the UK and Europe are as advised to you during the check-out process, before you confirm your order. To check relevant delivery charges, please refer to our Delivery Charges page . Deliveries outside of Europe are taken on a case by case basis and we will inform you of the relevant delivery charges when you contact our Customer Services team at email@example.com to request delivery outside of Europe.
A10.5 Our website contains a large number of Products. It is always possible that, despite our efforts, some of the Products on our website may be incorrectly priced. We will normally check prices as part of our dispatch procedures. In the event that we discover an error in the price of the Products you have ordered (including but not limited to where the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mispricing) we will contact you to inform you of the error and will give you the option of continuing to purchase the relevant Products at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing.
A11. How to Pay
A11.1 You can pay for Products using a debit card, or credit card or through your Paypal account.
A11.2 Payment for the Products (and all applicable delivery charges) shall be made by you in advance of you receiving the relevant Products, although we will not charge you until we have dispatched the relevant Products.
A11.3 We do not accept liability if delivery of any Products is delayed because you have provided us with incorrect payment details.
A11.4 If it is not possible to obtain full payment for any Products using the payment details you have provided, we may reject your order. This does not affect your statutory rights.
A12. Our Liability
A12.1 If we fail to comply with these Terms, we are responsible for any loss or damage you suffer that is a foreseeable result of our breach of these Terms or our negligence, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it is an obvious consequence of our breach or if it was contemplated by you and us at the time we entered into the relevant Contract.
A12.2 We only agree to supply the Products for domestic and private use. You agree not to use the Products for any commercial, business or resale purpose, and we have no liability to you for any loss of profit, loss of business, business interruption or loss of business opportunity.
A12.3 We do not in any way exclude or limit our liability for:
A12.3.1 death or personal injury caused by our negligence;
A12.3.2 fraud or fraudulent misrepresentation;
A12.3.3 any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 17 of the Consumer Rights Act 2015 (title and quiet possession);
A12.3.4 any breach of the terms implied by section 13 to 15 of the Sale of Goods Act 1979 or sections 9 to 11 and 13 of the Consumer Rights Act 2015 (description, satisfactory quality, fitness for purpose and samples); or
A12.3.5 defective products under the Consumer Protection Act 1987; or
A12.3.6 any other matter in respect of which we cannot exclude or limit our liability by law.
A13. Events Outside Our Control
A13.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under any Contract to the extent caused by an Event Outside Our Control. An Event Outside Our Control is defined below in clause A13.2.
A13.2 An “Event Outside Our Control” means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, postal delays, protests, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, national emergency, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, failure of public or private telecommunications networks, or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
A13.3 If an Event Outside Our Control takes place which affects the performance of any of our obligations under any Contract:
A13.3.1 we will contact you as soon as reasonably possible to notify you; and
A13.3.2 our obligations under the relevant Contract will be suspended and the time for performance of our obligations will be extended for the duration of the relevant Event Outside Our Control. Where the Event Outside Our Control affects our delivery of Products to you, we will arrange a new delivery date with you after the Event Outside Our Control is over.
A13.4 You may cancel a Contract affected by an Event Outside Our Control which has continued for more than 30 days. To do so, please contact us by e-mailing our Customer Services team at firstname.lastname@example.org or by telephoning them on 01482 679600 or by writing to us at Unicorn House, Broad Lane, Gilberdyke, Brough, HU15 2TS. If you opt to cancel, you will have to return (at our cost) any Products you have already received under the relevant Contract and we will refund the price you have paid under that Contract (including any delivery charges).
A14. Consent to Use of Personal Data
A15. Other Important Terms
A15.1 When we refer, in these Terms, to “in writing”, this will include e-mail.
A15.2 We may transfer our rights and obligations under any Contract to any third party, but this will not affect your rights or our obligations under these Terms.
A15.3 You may only transfer your rights or your obligations under a Contract to another person if we agree in writing.
A15.4 Each Contract is between you and us. No other person shall have any rights to enforce the terms of any Contract.
A15.5 Each of the clauses set out in these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable (whether in whole or in part), the remaining clauses (or the relevant part) will remain in full force and effect.
A15.6 If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
A15.7 Please note that these Terms are governed by English law. This means each Contract for the purchase of Products through our website, and any dispute or claim arising out of or in connection with it will be governed by English law. You and we both agree that the courts of England and Wales will have non-exclusive jurisdiction. However, if you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are a resident of Scotland you may also bring proceedings in Scotland.
MODEL CANCELLATION FORM
(Complete and return this form only if you wish to withdraw from any Contract)
To: Progarm Limited, Unicorn House, Broad Lane, Gilberdyke, Brough, HU15 2TS, (email@example.com)
I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods [*]/for the supply of the following service [*],
Ordered on [*]/received on [*],
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
[*] Delete as appropriate
© Crown copyright 2013.
PART B. BUSINESS CONDITIONS OF SALE
The Conditions in this Part B only apply to business customers using our website and do not apply to consumers. If you are a consumer purchasing products from our website our consumer terms and conditions in Part A apply – please click here to see a copy.
B1.1 In these Conditions the following words shall have the following meanings:
“Buyer” the person, firm or company who purchases the Goods from the Company.
“Company” Progarm Limited or any subsidiary or associated company which supplies Goods to Buyer.
“Conditions” the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) any special terms and conditions agreed in writing between the Company and Buyer.
“Contract” the contract between the Company and Buyer for the sale and purchase of the Goods, incorporating these Conditions.
“Goods” any goods agreed in the Contract to be supplied to Buyer by the Company (including any part or parts of any order for Goods).
B1.2 Words in the singular include the plural and vice versa.
B2. Application of Conditions
B2.1 These Conditions cancel and supersede any earlier conditions of sale of the Company and shall govern the Contract to the exclusion of any terms or conditions which Buyer purports to apply under any purchase order, confirmation of order, specification or other document, or which are implied by trade, custom, practice or course of dealing, and Buyer waives any right which it might have to rely on such terms or conditions.
B2.2 No variation to these Conditions or any representation about the Goods shall have effect unless expressly agreed in writing and signed by a director of the Company.
B2.3 Each order for the Goods by Buyer from the Company shall be deemed to be an offer by Buyer to purchase the Goods subject to these Conditions.
B2.4 No order placed by Buyer shall be deemed to be accepted by the Company until the Company has confirmed acceptance of the order or (if earlier) the Company delivers the Goods to Buyer.
B2.5 Buyer shall ensure that the terms of its order and any applicable specification submitted by Buyer are complete and accurate. The Company shall not be liable to Buyer if such terms or specification are not complete or accurate.
B2.6 Any quotation is given on the basis that no contract will come into existence until the Company has confirmed acceptance of Buyer’s order or (if earlier) delivers the Goods. Any quotation is valid only for all the Goods referred to in the quotation for a period of 28 days from its date, provided that the Company has not previously withdrawn it. The Company may reject an order which is for only part of the Goods the subject of a quotation.
B2.7 The Company may notify to Buyer a credit limit for purchasing the Goods from the Company. The Company shall be entitled to change such credit limit or remove Buyer’s credit terms at any time upon giving notice to Buyer.
B3.1 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions, sizes, measurements or illustrations contained in catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and the Company shall be entitled to correct any error without any liability to Buyer.
B3.2 The Company reserves the right to change the specification of the Goods after acceptance of Buyer’s order provided that such change does not materially alter the characteristics of the Goods.
B3.3 The sale of the Goods shall not be a sale by sample.
B4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall be by the Company delivering or arranging delivery of the Goods to Buyer’s place of business (“Delivery Location”). Buyer shall unload the Goods on delivery.
B4.2 Delivery of the Goods shall be completed on the arrival of the Goods at the Delivery Location. Delivery charges may apply depending on the value of the order and the Delivery Location.
B4.3 Any date specified by the Company for delivery of the Goods is an estimate only and time for delivery shall not be made of the essence by notice. Where the Company agrees to change the specification or quantity of Goods ordered, the Company shall be entitled to adjust the delivery date accordingly. If no date for delivery has been so specified, delivery will be within a reasonable time.
B4.4 Subject to the other provisions of these Conditions, the Company shall not be liable for any loss (including but not limited to loss of profit and consequential loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods nor will any delay entitle Buyer to terminate or rescind the Contract.
B4.5 If for any reason Buyer will not take delivery of any of the Goods, the price shall become immediately due and payable and risk in the Goods will pass to Buyer. The Company may store the Goods until actual delivery and Buyer will be liable for all related costs and expenses (including without limitation demurrage, storage and insurance). Without prejudice to the Company’s right to recover from Buyer any sums due to the Company, if Buyer has not collected or taken delivery of the Goods within 14 days from the date upon which the price became due and payable the Company may dispose of the Goods in such manner as the Company may determine.
B5. Shortfalls and Non-Delivery
B5.1 The quantity of any consignment of the Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
B5.2 The Company shall not be liable for any non-delivery or any shortfall in the delivery of the Goods unless written notice is given to the Company within 24 hours of the estimated date of delivery supplied by the Company or actual delivery, as applicable.
B5.3 Any liability of the Company for non-delivery of the Goods shall be limited to delivering the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
B5.5 Any liability of the Company for any shortfall in the delivery of the Goods shall be limited to making up the shortfall within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
B6.1 Notwithstanding any other provision in the Contract, the Company may at its option allow Buyer to return the Goods and the Buyer will not be charged for such Goods upon the following conditions:
B6.1.1 the relevant Goods are undamaged, with all trademarks or other labelling intact and fully suitable for resale;
B6.1.2 Buyer notifies the Company within 14 working days of delivery of its intention to return the Goods; and
B6.1.3 the Goods are returned to the Company within 21 working days of delivery accompanied by a returns order reference provided by an authorised Progarm representative.
B6.2 The Company shall not accept the return of any Goods where the Buyer has not complied with Condition B6.1 above or where the Goods have been:
B6.2.1 altered or modified by Buyer;
B6.2.2 marked with Buyer’s trademark or labelling; or
B6.2.3 produced to Buyer’s specification.
B6.3 Buyer agrees to pay the Company a 20% restocking and handling fee against any returned Goods which are not suitable for immediate resale by the Company.
B7.1 Unless otherwise agreed in writing by the Company, the price for the Goods shall be the price in force at the date of acceptance of Buyer’s order. The price for the Goods shall be exclusive of value added tax (where applicable) and delivery charges (where applicable), which sum Buyer shall pay at the same time.
B7.2 The Company shall be entitled at any time prior to delivery of the Goods to increase the price of the Goods to reflect any increase in the cost of the Goods to the Company after acceptance of Buyer’s order which is due to factors beyond the Company’s reasonable control including, without limitation, currency exchange rate fluctuations, increases in taxes and duties and any other increase incurred by the Company in respect of the Goods.
B7.3 The Company reserves the right to adjust the price of any Goods to reflect any alteration to the specification of the Goods agreed between the Company and Buyer after acceptance of Buyer’s order.
B8.1 Subject to Condition B8.3 and unless otherwise notified in writing by the Company to Buyer, payment of the price for the Goods and any other charges and sums due under the Contract is due within 30 days from the invoice date. Time for payment shall be of the essence. No payment shall be deemed to have been received until the Company has received cleared funds.
B8.2 All sums payable to the Company under the Contract shall become due immediately upon termination of the Contract despite any other provision.
B8.3 Any issues relating to an invoice must be communicated to the Company within seven days of the date of the invoice.
B8.4 Buyer shall make all payments due under the Contract without any deduction by way of set-off, counterclaim, discount, abatement or otherwise.
B8.5 If Buyer fails to pay the Company any sum due pursuant to the Contract the Company shall be entitled to suspend performance of the Company’s obligations under the Contract or under any other contract between the Company and Buyer and/or charge Buyer interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Bank of England accruing on a daily basis until payment is made, whether before or after any judgment. Alternatively, the Company shall be entitled to charge Buyer interest and compensation in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended. In addition to interest, the Company shall be entitled to recover from Buyer such legal costs as are incurred in the recovery of sums due and owing to the Company.
B8.6 The Company may at any time set off any liability of Buyer to the Company against any liability of The Company to Buyer, whether such liability is present or future, liquidated or unliquidated, under the Contract or otherwise.
B8.7 Credit Accounts
B8.7.1 Credit accounts may only be opened at the Company’s discretion and are subject to:
a) the Company obtaining a signed account application form from Buyer;
b) the Company obtaining satisfactory references in respect of Buyer; and
c) the Company being satisfied that it will receive a minimum of £3000 in orders for Goods per annum (or such other amount as the Company may determine in its absolute discretion) from Buyer.
B8.7.2 If the Company has agreed to operate a credit account for Buyer, such credit account shall be governed by these Conditions and the terms of the account opening form or such other terms as are notified by the Company to Buyer.
B8.7.3 The Company may set a maximum amount of credit allowable upon each account and may, in its absolute discretion, withdraw credit facilities at any time and without explanation.
B8.7.4 Buyer agrees that the Company may obtain references as to Buyer’s financial status. Any change to Buyer’s financial status must be notified in writing to the Company immediately.
B9. Risk and Ownership
B9.1 The Goods shall be at the risk of Buyer from the time of delivery.
B9.2 Ownership of the Goods shall not pass to Buyer until the Company has received in full in cash or cleared funds:
B9.2.1 all sums payable in respect of the Goods; and
B9.2.2 all other sums which are or which become payable to the Company from Buyer on any account including any interest on such sums.
B9.3 Until ownership of the Goods has passed to Buyer, Buyer shall:
B9.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
B9.3.2 store the Goods (at no cost to the Company) separately to other goods of Buyer or any third party in a way that they remain readily identifiable as the Company’s property;
B9.3.2 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
B9.3.3 maintain the Goods in satisfactory condition insured for their full price against all risks and hold the proceeds of insurance on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account; and
B9.3.4 notify the Company immediately if it becomes subject to any of the events listed in Condition B9.5.
B9.4 Buyer may resell the Goods before ownership has passed to it solely on the condition that any sale shall be on Buyer’s own behalf in the ordinary course of Buyer’s business at full market value and Buyer shall deal as principal when making such sale.
B9.5 Buyer’s right to possession of the Goods shall terminate immediately and all sums shall become due and payable immediately and Buyer agrees that the Company shall have the right to rescind or terminate the Contract and/or to suspend any further deliveries under the Contract if any of the following events, or the Company reasonably believes that any of the following events will, happen:
B9.5.1 Buyer has a bankruptcy order made against it or makes an arrangement or composition with its creditors or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors or (being a body corporate) convenes a meeting of creditors or enters into liquidation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of Buyer or notice of intention to appoint an administrator is given by Buyer or its directors or by a qualifying floating charge holder, or a resolution is passed or a petition presented for the winding up of Buyer or for the granting of an administration order in respect of Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of Buyer; or
B9.5.2 Buyer encumbers or in any way charges any of the Goods or suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between The Company and Buyer, or is unable to pay its debts or Buyer ceases to trade.
B9.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
B9.7 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 Buyer’s right to possession has terminated, to recover them.
B9.8 Where the Company is unable to determine whether any Goods are the goods in respect of which Buyer’s right to possession has terminated, Buyer shall be deemed to have sold all goods of the kind sold by the Company to Buyer in the order in which they were invoiced to Buyer.
B9.9 On termination of the Contract, howsoever caused, the Company’s (but not Buyer’s) rights contained in this Condition B8 shall remain in effect.
B10.1 The Company warrants (subject to the other provisions of these Conditions) that upon delivery the Goods will comply with the specification for the Goods, subject to any qualification contained in the specification.
B10.2 The Company shall not be liable for a breach of the warranty in Condition B10.1 unless:
B10.2.1 Buyer gives written notice of any defect to the Company within 14 working days of delivery; and
B10.2.2 The Company is given a reasonable opportunity of examining the Goods and Buyer (if asked to do so by the Company) returns the Goods to the Company’s place of business for the examination to take place there.
B10.3 The Company shall not be liable for a breach of the warranty in Condition B10.1 if:
B10.3.1 Buyer makes any further use of the Goods after giving notice of any defect;
B10.3.2 the defect arises because Buyer failed to follow the Company’s instructions as to the storage or use of the Goods or good trade practice;
B10.3.3 Buyer alters or modifies the Goods without the prior written consent of the Company;
B10.3.4 the defect arises as a result of the Company following any specification supplied by Buyer; or
B10.3.5 the Goods differ from their specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
B10.4 Subject to Conditions B10.2 and B10.3, if any of the Goods do not conform with the warranty in Condition B10.1 the Company shall at its option replace such Goods or refund the price of such Goods at the pro rata Contract rate and shall have no further liability for breach of the warranty in Condition B10.1 in respect of such Goods. If the Company so requests, Buyer shall, at the Company’s reasonable expense, return the Goods or the parts of such Goods which are defective to the Company.
B10.5 These Conditions shall apply to any replacement Goods supplied by the Company.
B11. Limitation of Liability
B11.1 Subject to Conditions B4, B5 and B10, the following provisions set out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Buyer in respect of any:
B11.1.1 breach of these Conditions;
B11.1.2 use made or resale by Buyer of any of the Goods, or of any product incorporating the Goods; and
B11.1.3 representation, statement or tortious act or omission, including negligence, arising under or in connection with the Contract.
B11.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
B11.3 Nothing in these Conditions excludes or limits the liability of the Company:
B11.3.1 for death or personal injury caused by the Company’s negligence;
B11.3.2 under section 2(3) of the Consumer Protection Act 1987;
B11.3.3 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
B11.3.4 for fraud or fraudulent misrepresentation.
BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION B11.4
B11.4 Subject to Conditions B11.2 and B11.3:
B11.4.1 The Company shall not be liable to Buyer for any pure economic loss, loss of profit, goodwill, business opportunity or production downtime or any type of indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract; and
B11.4.2 The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price of the Goods the subject of the claim.
B12. Intellectual Property Rights
B12.1 Buyer shall not use the Company’s name, logo or other intellectual property rights in advertising or publicity without the Company’s prior written consent.
B12.2 Where the Goods are produced to Buyer’s specification, Buyer shall indemnify the Company 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 Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the specification. This Condition B12.2 shall survive termination or completion of the Contract.
B13. Events beyond the Company’s control
The Company reserves the right to defer the date of delivery or to cancel the Contract or to reduce the volume of the Goods ordered by Buyer (without liability to Buyer and without prejudice to the Company’s right to recover all sums owed to it by Buyer in respect of consignments delivered and costs incurred prior to the date of such deferment, cancellation or reduction) if the Company is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war, national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable raw materials.
B14.1 Buyer shall not assign the Contract or any part of it without the prior written consent of the Company.
B14.2 The Company shall be entitled to assign the Contract or any part of it to any person, firm or the Company.
B14.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
B14.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
B14.5 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
B14.6 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
B14.7 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 principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
B14.8 Subject to Conditions B14.1 and B14.2, nothing in these Conditions confers on any third party any benefit or any right to enforce any of these Conditions.
B14.9 Nothing in the Contract excludes the statutory rights of consumers.
B14.10 The Contract constitutes the entire agreement between the parties. Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract.
B14.11 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the jurisdiction of the English courts.