SALES TERMS AND CONDITIONS OF SALE FOR GOODS
Sold by Everbuild Building Products Ltd.
PMWI 507 Issue 4 26/05/2016
1.1 In these Conditions the following expressions have the following meanings:
1.1.1 “we” or “us” means Everbuild Building Products Ltd;
1.1.2 “you” or “yourselves” means the buyer who places an order for Goods;
1.1.3 “Conditions” means these terms and conditions of sale including those described as commercial terms at the front of this document;
1.1.4 “Confidential Information” means any reports or information disclosed to you by us in contemplation of, pursuant to or in connection with this Contract (whether orally or in writing), whether or not such information is expressly stated to be confidential or marked as such;
1.1.5 “Contract” means the contract between us and you for the sale of the Goods on these Conditions;
1.1.6 “Force Majeure” means any cause or circumstance preventing either party from performing any or all of its obligations to the other (including without limitation any strike, lockout or other industrial action).For the avoidance of doubt any fault or delay in deliveries from our sub-suppliers shall be a Force Majeure event;
1.1.7 “Goods” means the products which you agree to buy from us as identified by your order (including any part or parts of them);
1.1.8 “Insurance” means the combined product and public liability insurance policy taken out and maintained by us;
1.1.9 “Intellectual Property” means all patents, copyrights, registered or unregistered trademarks, design rights, utility models, business names, domain names, Know-How and all other intellectual property rights of a similar nature (whether registered or not) subsisting anywhere in the world in or associated with the Goods;
1.1.10 ‘Working Days” means any day between Monday to Friday inclusive but excluding bank and public holidays.
1.2 Unless varied in accordance with Condition 3, the Contract, together with all schedules which form part of it, will be on the following Conditions to the exclusion of:
1.2.1 any other terms or conditions which you purport to apply under any purchase order, confirmation of order, offer or acceptance; and/or
1.2.2 any other written, oral or electronically transmitted communication; and such other terms and conditions shall not be deemed to form part of the Contract.
1.3 In so far as this Contract concerns the general relationship between you and us, it shall come into force upon our acceptance of your credit application.
1.4 In relation to each individual supply of Goods, this contract shall come into force as provided for in Condition 2.
2.1 Quotations and any accompanying technical or other information supplied by us are illustrative only and are not offers from us capable of immediate binding acceptance. A Contract shall come into existence only when we accept your order.
2.2 You shall have no rights to or in any documents or materials forming or accompanying a quotation and if we do not accept an order based on a quotation, you shall return all documents and materials forming or accompanying the quotation to us immediately at our request.
3.1 No addition or variation to any quotation given or the Contract is binding on us unless agreed in writing and signed by one of our Directors or our Company Secretary.
3.2 None of our staff, other than the Director or the Company Secretary, are authorised to make any representations concerning the properties or qualities of the Goods or to make any addition or variation to the Contract. You agree that in entering into this Contract you do not rely on any representations other than those contained in this Contract or expressly agreed by us in accordance with Condition 3.1.
4.1 The Goods are delivered when either:-
4.1.1 you collect them from the Delivery Point following our notification that they are ready for collection; or
4.1.2 if you have requested an alternative delivery point and we have agreed, when we have delivered the Goods to that place. If you do request changes to the Delivery point, you shall be liable for any changes made by us or any additional costs or expenses incurred by us as a result of such a change.
4.2 We may at our discretion deliver the Goods by instalments.
4.3 The Delivery Date in the Commercial Terms and any other time or date which we give for delivery of the Goods or any instalment is an estimate only. You will not be entitled to terminate the Contract as a whole if we fail to meet any given times or dates for delivery unless such a delay exceeds 40 Working Days. Under this Contract, time is not of the essence.
Where no delivery Date is given, delivery will be within a reasonable time.
4.4 Where delivery is made by instalments, each instalment is to be deemed a separate contract and any delay, default or non-delivery of any one instalment shall not entitle you to cancel the remainder of the Contract.
4.5.1 you fail or refuse to accept delivery; or
4.5.2 you do not give delivery instructions when the goods are ready for dispatch; or
4.5.3 delivery is delayed at your request, then you will be responsible for paying or reimbursing us any additional costs or charges which we incur as a result. Furthermore, we may at our option, withhold delivery of any further Goods or treat the Contract as repudiated by you.
4.6 You must notify us in writing if a delivery is not received within ten (10) Working Days from the date we informed you that it had been despatched.
4.7 Unless we agree otherwise, you shall provide adequate labour and other facilities at the point of delivery to enable the Goods to be safely and properly unloaded. You shall indemnify us against any claims arising from such unloading except to the extent that any such claims relate to personal injury, death or damage to property which is caused by the negligence of our employees or agents.
4.8 In the event that we deliver to you an incorrect quantity of the Goods you shall not be able to object to or reject the Goods or any of them on that ground alone.
4.8.1 Without prejudice to Condition 4.2, you shall not fail or refuse to accept delivery of any Goods on the grounds that the quantity is below the quantity ordered. So long as you notify us and the carrier of any shortage within three (3) Working Days after the Goods had been delivered or were collected by you and provided we have agreed the amount of the shortage, we shall deliver, within a reasonable time, the balance of the goods required to bring the total to the quantity ordered;
4.8.2 If we deliver in excess of 105% of the quantity agreed in the Contract you shall:
188.8.131.52 notify us immediately; and
184.108.40.206 request us to collect (at our expense) the excess quantity of the Goods; or
220.127.116.11 agree to pay us for the excess Goods pro rata at the Price and be invoiced accordingly for this.
4.8.3 If we shall deliver quantities between 100-105% of the Goods agreed in the Contract, there shall be no consequences for either party.
4.9 Subject to the other provisions of these Conditions, we shall not be liable for any direct, indirect or consequential loss (all of which include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the Delivery Date or any other time given for delivery of the Goods (even if caused by our negligence).
4.10 If we are prevented, hindered or delayed from delivering the Goods because of a Force Majeure event, then we may give notice to you at any time in writing either:-
4.10.1 cancelling our outstanding obligations to deliver Goods under the Contract, or
4.10.2 extending the time for delivery of the Goods outstanding under the Contract by a period not exceeding three months.
4.11 If we give notice to you under Condition 4.10:
4.11.1 we shall not be liable to you in damages for any loss whether direct, indirect or consequential of whatever nature which you may incur as a result: and
4.11.2 the time for delivery shall be extended accordingly and we shall not be in breach of Contract due to the late delivery.
4.12 The above provisions of this Condition 4 do not affect our right to recover the price of any Goods that have already been invoiced to you or in respect of which risk has passed to you.
5. PAYMENT AND PRICE
5.1 The Price of the Goods shall be that stated or referenced in the Commercial Terms.
5.2 Prices are stated on the basis of current costs, exclusive of: VAT; and any cost of freight and insurance for deliveries outside the UK.
5.3 Prices given in a quotation may be increased by:
5.3.1 such amount as is reasonably necessary to reflect any increase in the cost of manufacturing the Goods; and/or
5.3.2 fluctuations in tax, duty, exchange rates and the like, between the date of quotation and the date of despatch and we shall give you notice of any such increase.
5.4 Goods (and each instalment) will be invoiced on delivery or when we have notified you that they are ready for collection as appropriate.
5.5 Invoices are calculated by reference to the weight or volumes of the Goods at the time of packaging.
5.6 We shall require payment by you on or before the last day of the next calendar month from the date of invoice for the net sales of all Goods and all related expenses.
5.7 We may ask you to pay money in advance or on account and if so you must pay such amounts immediately with any balance being payable in accordance with Condition 5.6 above.
5.8 If you fail to make any payment when it is due or if any event described in Condition 9.5 occurs then the Price of all Goods and any other goods supplied by us to you shall immediately become due and payable and, without affecting any other remedy we may have, we may:-
5.8.1 treat this Contract and every other contract which has not yet been fulfilled between us and you as cancelled;
5.8.2 suspend any further deliveries to you or collection by you;
5.8.3 appropriate any payment made by you as we may think fit;
5.8.4 charge you interest (both before and after any judgement) on all sums due and outstanding up to and including the combined total of the: Official Dealing Rate of the Bank of England as applicable from time to time; and the rate provided by the Late Payment of Commercial Debts (Interest) Act 1998 as applicable from time to time; and
5.8.5 be entitled to a general lien on the Goods and all your goods in our possession for the unpaid price of the Goods or any other goods sold to you.
5.9 All payments shall be made in Pounds Sterling unless we require or agree to payment in Euros or any other currency.
5.10 All payments must be made in full and you are not entitled to withhold payment of any amount which is due or to set off against any such amount any cross-claim (whether liquidated or unliquidated) for any sum or sums for which we do not admit liability.
5.11 Notwithstanding any other payment provisions, we reserve the right, in the event that you are a sole trader or partnership at the time of signing this Contract and subsequently decide to convert your status to that of a limited liability company, to issue forthwith an invoice for all outstanding amounts which you owe to us, for which we shall require payment within five (5) Working Days.
6.1 The Goods will be delivered in the product containers which we hold in stock at the time your order is processed.
6.2 The Price of the Goods, unless otherwise stated, includes the costs of packaging materials.
6.3 Where it has been agreed that the packaging materials will be returned, you will be credited with the full cost of the packaging materials provided that you return the packaging at your cost to the delivery Point in a reasonably satisfactory condition and within a reasonable time.
7.1 We may be able to store you Goods at a charge provided you give us at least five (5) Working Days’ notice.
7.2 In the event that you have been given notice in accordance with this Contract that the Goods are ready for collection and you do not collect them within five (5) Working Days, unless a waiver of this clause has been agreed in writing by one of our directors or our Company Secretary, you shall be charged storage costs at the rate of £1 per day per tonne or per pallet of the Goods as applicable. Such charges shall continue to accrue until you collect the Goods and you shall be invoiced for such storage charges accordingly.
7.3 If we have stored your Goods for three (3) calendar months or more than we can give you one (1) calendar months written notice at any time requiring you to remove the Goods from storage.
7.4 If you do not remove the Goods when requested to do so, we may then dispose of them in any way we see fit. We will charge you with all costs of such disposal including costs of waste disposal and environmental charges, or if we are able to sell the Goods then we will set off the proceeds of sale against the costs of arranging the sale and any outstanding storage costs.
7.5 The provisions of this Condition 7 apply whether or not title in the Goods has passed to you.
8.1 Risk and responsibility for the Goods shall pass to you:-
8.1.1 on delivery by us to the Delivery Point; or
8.1.2 whichever is the earlier of:-
18.104.22.168 the collection of the Goods by you; or
22.214.171.124 the expiry of five (5) Working Days from the date of our notice to you that the Goods are ready for collection (and any Goods uncollected within this period shall incur storage charges in accordance with Condition 7)
8.2 You must examine the Goods on receipt and if you believe there is loss or damage to the Goods during transit which may be our responsibility, you must notify us in writing within three (3) Working Days of receipt of our delivery note. If we do not receive such written notice within the required time scale then we will not be liable to you for any loss or damage to the Goods arising during transit. If Goods have been damaged during transit then all packaging materials must be retained for examination by us, the carrier or their agents.
9.1 Ownership of the Goods shall not pass to you until we have received payment in full and such funds are cleared for the Goods; and any other goods which have been delivered to you but for which payment is due and has not been received.
9.2 Until ownership has passed to the Buyer or you sell or use the Goods pursuant to Condition 9.3, you must:
9.2.1 hold the Goods on a fiduciary basis as our bailee;
9.2.2 store the Goods (at no cost to us) separately from all our other Goods or goods of a third party in such a way as they are identifiable as our property;
9.2.3 not destroy, deface or obscure any identifying mark, logo or packaging on or relating to the Goods;
9.2.4 maintain the Goods in a satisfactory condition and keep them insured, on your insurance, for the Price against all risks (and provide us with a copy of such insurance at our request); and 9.2.5 hold the proceeds of any insurance referred to in Condition 9.2.4 on trust for us and do not mix them with any other money or pay the money into an overdrawn bank account.
9.3 You may resell or use the Goods before ownership has passed to you on the following conditions:
9.3.1 any sale or use is in the ordinary course of your business;
9.3.2 any sale shall be to an unconnected third party at not less than the value of the Goods when sold to you;
9.3.3 any such sale shall be deemed as a sale of our property on your behalf and you shall deal as principal when making such a sale; and
9.3.4 you hold the proceeds of any resale on trust for us in a separate account in our joint names and do not mix them with any other money or pay the proceeds into an overdrawn bank account.
9.4 We can revoke your right to sell and use the Goods at any time by written notice to you if you have failed to pay any sums due to us (whether relating to the Goods or other goods) within ten (10) Working Days of the due date or if we have genuine doubts as to your solvency.
9.5 Your power of sale and use above shall automatically cease if:
9.5.1 you have a petition presented for your winding up; or
9.5.2 (if you are an individual) you die or become incapacitated; or
9.5.3 you pass a resolution for voluntary winding up otherwise than for the purpose of a bona fide amalgamation or reconstruction; or
9.5.4 you compound with your creditors or have a receiver appointed over all or any part of your assets; or 9.5.5 a petition for an administration order is presented or is intended to be presented in respect of you; or
9.5.6 you become bankrupt or insolvent; or
9.5.7 you enter into any arrangements with creditors; or
9.5.8 you take or suffer any similar action in consequence of debts or carry out or undergo any analogous act or proceedings under foreign law.
9.6 If your power of sale and use ends under conditions 9.4 or
9.5 above, you will deliver up the Goods; or have them delivered up to us; and/or allow us to repossess the Goods and for the purposes of such repossession you grant to us (our agents and employees) an irrevocable licence to enter on any of your premises where the Goods are stored or where we may reasonably believe they may be stored.
9.7 You will not pledge the Goods and will keep them free from, and indemnify us against, any charge, lien or other encumbrance on them. If you do pledge or in any way charge any of the Goods, all monies owing to us by you shall (without prejudice to any other right or remedy we may have) immediately become due and payable.
10. RETURNED GOODS
10.1 If you discover before using them that Goods which we have delivered to you did not comply with the provisions of Condition
11.1 at the time of delivery then provided that:
10.1.1 written notice has been given to us of such defect within five (5) Working Days of the date when you first could have reasonably ascertained that such defect existed; and
10.1.2 you have not in any way dealt with the Goods so as to put them in a worse condition than when they were delivered to you we will replace or refund the Price of any Goods and reimburse you for all reasonable costs incurred by you in returning the Goods to us.
10.2 The remedy provided in Condition 10.1 shall, provided it is performed by us within a reasonable time, be your only remedy for defects in Goods which have not been used by you and for the avoidance of doubt we shall not be liable for storage costs; warehousing; processing; manufacturing; labour; or any other indirect or consequential loss
11. THE GOODS WARRANTY
11.1 We warrant that the Goods will, at the time of delivery, display the technical properties for the approved uses set out in the relevant EVERBUILD BUILDING PRODUCTS LTD technical data sheets and health and safety sheets.
11.2 Any warranty given by us regarding the suitability of the Goods for any other use, other than an approved use, shall only be valid and binding if in writing and signed by one of our directors or our Company Secretary.
11.3 If you intend to buy or buy and sell Goods for a non-approved use then you do so wholly at your own risk and must satisfy yourself as to the suitability of the Goods for that use.
11.4 If we supply you with Goods manufactured to your own specification then we shall have no liability whatsoever to you for their fitness for any anticipated purpose or use.
11.5 We shall not be liable to you for any loss you may incur as a result of your failure to comply with any of our technical; storage; safety; or any other applicable instructions and/or guidelines for the Goods.
11.6 If you sell the Goods, you shall grant no warranty greater in extent than this warranty.
12.1 Save as expressly provided elsewhere in these Conditions (which other provisions shall take precedence) the following provisions of this Condition 12 set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:
12.1.1 any breaches of these Conditions;
12.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
12.2 All warranties, conditions or other terms (whether express or implied) as to the fitness for purpose; use; satisfactory quality; description; compliance with sample; or condition, of the Goods, whether implied by statute, common law or otherwise (save for the conditions implied by section 12 of the Sale of Goods act 1974 (as amended) are, to the fullest extent permitted by law, excluded from the Contract.
12.3 You must inform us as soon as possible and in any event within five (5) Working Days of you becoming aware that the Goods may have:
12.3.1 caused injury or death to any person; or
12.3.2 caused damage to property and where appropriate allow us to inspect and at our option repair any alleged damage.
12.4 Nothing in these Conditions excludes, limits or restricts our liability for fraudulent misrepresentation, death or personal injury caused by our negligence.
12.5 If we incur any liability to you as a result of any defect in the Goods once used by you as intended by these Conditions which causes personal injury (so far as not caused by our negligence) or damage to property where our liability falls within the scope of our Insurance, our liability is limited to sums recoverable under it (or which could be recovered but for any negligent act or omission by us which invalidates it) up to its maximum indemnity limit.
12.6 Subject to Conditions 12.2, 12.4, and 12.5:
12.6.1 our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, whether such liability arises as a result of a breach or series of breaches, of a material term of the Contract or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the Price.
12.6.2 We shall not be liable to you for any loss of profits; depletion of goodwill; use; or any indirect or consequential loss or damage, whatsoever and howsoever caused which arises out of or in connection with the Contract.
13. OTHER PROVISIONS RELATING TO LIABILITY
13.1 If it may appear to any court, arbitrator or tribunal that any term of these Conditions which imposes any restrictions or limitations of our liability to the price, multiple of the Price or any specified sum and to which the Unfair Contract Terms Act 1977 applies, and such provision does not satisfy the requirements of reasonableness, such restriction or limitation shall not be disregarded or treated as void but shall be construed as if there were substituted in that clause such greater minimum specified sum or multiple of the Price as would in the opinion of the court, arbitrator or tribunal be reasonable and shall be given effect accordingly.
13.2 Except as expressly provided in these Conditions (and except where the Goods are sold to 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 (subject always to Condition 13.1)
13.3 Where the Goods are sold under a consumer transaction as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 (as amended), the statutory rights of the Consumer are not affected by these Conditions.
14. INDEMNITY TO EVERBUILD BUILDING PRODUCTS LTD
You shall indemnify us against all actions, claims or demands for losses suffered or incurred by us including (without limitation) claims by third parties for fraud, in tort or otherwise arising directly or indirectly in connection with the use, functioning or state of the Goods except to the extent that the same are caused by our negligence or default. You shall indemnify us against all actions, claims or demands for losses suffered or incurred by us including (without limitation) claims by third parties for fraud, in tort or otherwise arising directly or indirectly in connection with the use, functioning or state of the Goods except to the extent that the same are caused by our negligence or default.
15. INTELLECTUAL PROPERTY RIGHTS
15.1 We retain all Intellectual Property rights in the Goods (including, without limitation, in the packaging, instructions manuals and other documentation supplied) for the duration of this Agreement and after its termination for whatever reason.
15.2 You acknowledge that:
15.2.1 the Intellectual Property rights are our property;
15.2.2 noting in these Conditions shall be construed as conferring any licence or granting any rights in favour of you (or anyone else) in relation to our Intellectual property rights:
15.2.3 we assert our full rights to control the use of our trade marks within the European Union and you shall assist us, as required, in preventing (so far as may be permitted by law) parallel importers from diluting our rights;
15.2.4 any reputation in any trade marks affixed or applied to the Goods shall accrue to our sole benefit.
15.3 You agree:
15.3.1 not to remove any trade marks, copyright notices or other forms of identification from the Goods (save for any removal which is a necessary result of a manufacturing process), or apply any other trade mark to the Goods;
15.3.2 to promptly and fully notify us of any actual, threatened or suspected infringement of any Intellectual Property rights which comes to your attention; and
15.3.3 not to make any adaptations or additions to or variations of any of our intellectual Property.
15.4 In the event that you make any discoveries, creations, inventions or improvements in relation to our Intellectual Property, you must, when instructed, transfer all such rights to us and effect all assignments as we may request.
15.5 We will not be liable to you for any costs, claims, damages, expenses or losses incurred by you as a result of any claim that the Goods or the use of any Goods infringes any third party Intellectual Property rights, in particular (but not limited to) where such costs, claims, damages, expenses or losses arise from any unauthorised modification, alteration or adaptation of the Goods by or for you.
16.1 Each of the parties to this Agreement undertakes to the other to keep confidential all Confidential Information concerning the business and affairs of the other which it has obtained or received as a result of discussions leading up to the entering into of this Agreement or which it has obtained during the course of this Agreement, except any information which is:
16.1.1 subject to an obligation to disclose by law or to any regulatory authority entitled to require disclosure by notice or otherwise;
16.1.2 already in its possession other than as a result of a breach in this Condition 16; or
16.1.3 in the public domain other than as a result of a breach of this Condition 16.
16.2 Each party undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this Condition 16 by its employees, agents and subcontractors.
17. CREDIT CHECKS
17.1 We reserve the right to refuse to accept any order or perform any Contract if your arrangements for payment or credit appear to be or become unsatisfactory.
17.2 We reserve the right, in the event that you are not a limited liability company, to make searches of your details, background and credit history with credit reference and fraud prevention agencies prior to carrying out any obligations in these Conditions. Such credit reference agencies may, at their absolute discretion, keep a record of the search and share that information with other businesses.
18.1 We may at our absolute discretion accept the cancellation of any order provided we are notified no more than five (5) Working Days after the order has been accepted and we are indemnified by you in respect of all costs and expenses incurred prior to the cancellation being accepted, but in no circumstances are we obligated to accept any cancellations.
18.2 Any notice or communication to be given under this Contract must be in writing, delivered or sent by prepaid first class letter post, and:
18.2.1 if delivered or sent to you, will be addressed to your last known trading address; or
18.2.2 if delivered or sent to us, will be addressed to our
Company Secretary at Everbuild Building Products Ltd, Site 41, Cross Green Industrial Estate, Leeds, West Yorkshire, LS9 0SW.
Any such notice shall be deemed served: If delivered by hand, at the time it was delivered; or If posted; 48 hours after posting
18.3 We may assign, transfer, charge, sub-contract or deal in any other manner with the Contract, or any part of it to any person, firm or company. You may assign the Contract, or any part of it, only if you first obtain our written consent.
18.4 No waiver of any condition of this Contract shall be effective except where it is in writing and signed by the waiving party. No waiver of any particular breach of the Contract by us shall be held to be a waiver of any other or subsequent breach by you. No omission or delay by us in exercising a right under this Contract shall constitute or operate as a waiver by us of any right to exercise that right in the future or of any other rights under this Contract.
18.5 If any of the terms of this contract are found by any court or administrative body of competent authority to be illegal, void, voidable, invalid, unreasonable or unenforceable by any reason of law they shall be illegal, void, voidable, invalid, unreasonable or unenforceable to that extent only and all other terms of the Contract shall remain legal, valid, reasonable and fully enforceable.
18.6 We reserve the right to vary these Conditions as necessary on giving you reasonable notice in writing of such variation.
18.7 All Contracts shall be deemed to be made in England and shall be construed in accordance with and be governed by English law and shall be subject to the exclusive jurisdiction of the English courts.
18.8 A person who is not party to this Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract. This clause does not affect any right or remedy of any person that exists or is available otherwise pursuant to that Act.