‘Company’ means Whitebirk Sink Co Ltd
‘Customer’ means the person, firm or company placing an order with the Company.
‘Goods’ means all those goods and materials which are the subject of the Customer’s order and which are to be supplied to the Customer by the Company under these Conditions.
‘Conditions’ means the terms and conditions set out below.
‘Contract’ means the contract for the supply of Goods formed by the Company’s acceptance (which, however made or communicated, shall be deemed to be subject to these Conditions) of the Customer’s order.
All Goods sold by the Company are sold subject to these Conditions and unless otherwise agreed in writing by a director of the Company these Conditions shall be the sole terms and conditions of any sale by the Company to the Customer. Terms and conditions on the Customer’s order form or other similar document shall not be binding on the Company and the placing of an order for or the acceptance of the Goods by the Customer shall indicate unqualified acceptance of these Conditions.
No representative, agent or sales person has the Company’s authority to vary, amend or waive any of these Conditions on behalf of the Company and no amendment or addition to any of these Conditions shall be deemed to have been accepted unless accepted in writing by a director of the Company.
The Company reserves the right to correct any clerical or typographical errors made by its employees at any time upon notice to the Customer.
The prices, quantities and delivery times stated in any quotation are binding on the Company provided there are no changes to scope or timescales and they have not beenprovided for budget purposes only.
The price is inclusive of the cost of delivery, customs duties at the prevailing rate and all other taxes and expenses in respect of the Goods.
Colours or finishes outside the Company’s standard range shall (unless otherwise stated) be subject to extra charge. Unless otherwise specified, drawing office services and/or taking off of quantities are not included in the prices for Goods and shall be subject to extra charges if supplied.
The Company cannot guarantee continued stocks of the same type of products as the Goods following delivery and the Customer shall ensure that sufficient quantities of Goods are ordered. Prices shall not be valid for subsequent orders of Goods even if there is no change to the specifications.
All drawings, photographs, illustrations, dimensions, weights and other technical information and particulars of the Goods and any samples are given by the Company in the belief that they are as accurate as reasonably possible but are not to be treated as binding or as forming part of the Contract.
The Customer shall pass on to all third parties to whom it may supply the Goods any and all safety, storage and/or usage and/or installation instructions and guidance provided by the Company to the Customer in relation to the Goods.
Notwithstanding that the Company may have given a detailed quotation, no order shall be binding on the Company unless and until it has been accepted in writing by the Company.
Unless otherwise agreed, the Customer shall take delivery of Goods (or instalments thereof) at the Company’s premises within 14 days of receiving notice from the Company that such Goods are ready (and risk shall pass on the 14th day if not before).
If clause 5.2 does not apply and unless otherwise agreed, delivery of Goods within the UK will be made at the cost and risk of the Customer to the address specified in the Customer’s order by any method of transportation regarded as suitable by the Company at its discretion. The method and terms of delivery of Goods destined for export outside the UK will be as stated in the Contract which shall, in the absence of express agreement otherwise, incorporate the latest Ex Works Incoterms to the extent they do not conflict with the terms of the Contract. In each case, offloading of Goods shall be at the Customer’s cost and risk.
The Customer shall promptly comply with all reasonable requests of the Company in respect of the Contract including, without limitation, providing access to relevant premises. The Customer acknowledges that delivery timetables are dependant on compliance with this clause 5.4 and the Company shall not be liable for any delay of the Customer.
Although the Company will use all reasonable efforts to meet delivery dates, it shall not be liable to the Customer for any loss or damage, whether direct, indirect or consequential if delivery of the Goods is delayed or prevented, in whole or in part, unless agreed in writing by both parties.
If the Customer refuses or fails to take delivery of the Goods on the date of delivery, the Company will be entitled at its discretion to store the Goods at the risk of the Customer and the Customer shall in addition to the price payable under clause 3.2 pay all costs and expenses of such storage and any additional costs of carriage incurred.
The Company shall have no liability for loss of or damage to such Goods howsoever caused and whether or not attributable to the negligence of the Company or negligence or wilful default of any servant or agent of the Company.
The Customer shall accept the supply of such quantity of the Goods (whether more or less) as reasonably approximates to the stipulated amount of the Customer’s order on a rateable adjustment of the total price.
All Goods must be inspected by the Customer within 3 days of delivery. If any Goods are damaged, defective or do not match or if (subject to clause 5.7) there has been short delivery, the Customer must submit a detailed written notice of such to the Company within 3 days of delivery of the Goods. The Customer’s signature on the delivery note without any such endorsement shall release the Company from any liability in respect of damage.
In the event that an order is cancelled, the Customer shall immediately pay to the Company the full value of the Goods which were in production unless, in its absolute discretion, otherwise agreed by the Company.
If the Customer wishes to vary any order it shall notify the Company in writing giving full details of the requested variation. The Company shall be under no obligation to accept such request, but if it accepts a variation the Company shall notify the Customer of any applicable changes to the price and delivery timetable as a result of the variation. Such changes shall be binding on the Customer unless the Customer notifies the Company within 2 days that it does not accept in which case there shall be no variation to the order.
The Company does not accept the return of Goods which are surplus to the Customer’s requirements.
Unless otherwise agreed in writing, the risk of loss or damage to the Goods shall pass to the Customer upon delivery of the Goods to the agreed delivery address.
Unless otherwise agreed in writing, payment will be due:
in respect of any Goods, 28 days from the date of invoice; and in respect of all other Goods, no later than the last day of the month following the month of the invoice;
in each case, irrespective of whether or not the Goods have been delivered. The Company reserves the right to withdraw these credit terms immediately upon written notice.
Time for payment is of the essence. If payment is not made when due then the Company may, without prejudice to its other rights:
If the Company gives written notice to the Customer that a delivery has been suspended under clause 7.2.3 and the Customer does not, within fourteen (14) days, pay all sums then outstanding, the Company shall be entitled to treat such non-payment as repudiation of any or all contracts between the parties for the supply of goods and, upon acceptance of such repudiation, any and all outstanding orders shall be treated as cancelled by the Customer and the Company may claim payment for all sums due for delivered Goods and cancelled orders under this or any other contract. The Customer shall have the right to withhold payments due to the Company under this contract where there is a dispute provided the dispute is resolved within 30 days of the payment due date.
Without prejudice to any other rights the Company may have pursuant to this clause 7 the Customer agrees to indemnify the Company for all reasonable costs (including legal fees) the Company incurs in recovery or attempted recovery of outstanding monies due to the Company.
The Company shall retain title to and ownership of the Goods until it has received payment in full of all sums due for all Goods supplied to the Customer plus any interest payable under clause 7.2.1. If payments received from the Customer are not stated to refer to a particular invoice, the Company may in its discretion apportion such payments to any outstanding invoice.
If any of the Goods owned by the Company are attached to, mixed with or incorporated into any other goods not owned by the Company so that the Goods in question are not separate from the resulting composite or mixed goods, then immediately upon manufacture all such composite or mixed goods shall belong to the Company absolutely and not by way of charge until the Goods have been paid for in full or until the Company recovers possession of and resells sufficient of the composite or mixed goods to discharge the purchase price in full and the Company’s costs recovered, any excess to be accounted for to the Customer.
Until payment of the purchase price the Customer shall be the bailee of the Goods for the Company and the Goods shall be stored separately from any Goods which belong to the Customer or any third party, and shall be clearly marked and identifiable as being the Company’s property.
The Company hereby licences the Customer to sell, as the Company’s agent and bailee, Goods which belong to the Company. All monies received from any such sale shall be held on trust to settle any sums due in respect thereof to the Company and pay any balance to the Customer.
If the Customer fails to make any payment to the Company when due, compounds with its creditors, executes an assignment for the benefit of its creditors, has a bankruptcy order against it or, being a company, enters into voluntary or compulsory liquidation or has an administrator or administrative receiver or receiver appointed over all or part of its assets or takes or suffers any similar action in consequence of debt or becomes insolvent or if the Company has reasonable cause to believe that any of these events is likely to occur, the Company shall have the right, without prejudice to any other remedies:
to enter without prior notice any premises where Goods owned by it may be, and to repossess and dispose of any Goods owned by it so as to discharge any sums owed to it by the Customer under this or any other contract and a licence is hereby granted irrevocably to the Company and its representatives to enter the Customer’s premises where the Goods are being kept to remove the Goods;
to require the Customer not to resell or part with possession of any Goods owned by the Company until the Customer has paid in full all sums owed by it to the Company under this or any other contract; and/or to withhold delivery of any undelivered Goods and stop any Goods in transit.
Unless the Company expressly elects otherwise, any contract between it and the Customer for the supply of Goods shall remain in existence notwithstanding any exercise by the Company of its rights under this clause 8.
The Goods shall, once the risk has passed to the Customer in accordance with clause 6 or otherwise, be and remain at the Customer’s risk at all times unless and until the Company has retaken possession of them, and the Customer shall insure accordingly. Until such time as payment for the Goods has been made in full, any money received by the Customer as a result of any insurance claim of whatever nature with regard to the Goods shall be held on trust for the Company as if it were proceeds of the sale of the Goods and shall be immediately remitted to the Company.
The Company’s liability is defined as follows
The Company shall be under no liability under the agreed warranty until the total price of the goods has been paid in full. In no circumstances shall the Company’s liability to the customer exceed the price paid for the goods with respect to which a claim is made. In the event the customer experiences any defect in manufacture the following will apply.
The Company will replace without charge any goods supplied by them that in the Company’s opinion is defective. This warranty only applies to the original consumer purchaser and providing that the goods have been installed by a qualified and competent person and in accordance with any installation instructions given by the Company. The warranty only applies to the original installation and will not be covered if the good have been removed to another installation. The goods must have been cleaned in accordance with any instructions given by the Company. The warranty only covers domestic use in a private residence. The warranty shall not apply if the goods have been damaged due to misuse or negligence by the customer in any way. If the customer needs to make a claim this should be done in the first instance to the original point of purchase. A proof of this purchase by the way of a receipt will be required. Replacement of any goods under this warranty will will exclude transportation, any labour costs for removal and or re-installation and does not cover any direct or indirect or consequential losses caused by the defective product. The Company will not be liable for any of the following.
The Customers exclusive remedy for defective products shall be for reasonable direct costs and the Company’s total liability for any and all losses and damages arising out of any cause whatsoever (whether such cause be based on contract, negligence, strict liability, or otherwise) shall in no event exceed the purchase cost of the Goods, which for the avoidance of doubt does not equal the total project value, in respect to which such cause arises or, at the option of the Company, the replacement of such products; in no event shall the Company be liable for incidental, consequential or punitive damages resulting from any such cause.
In the event that the Goods are based on a design supplied by either party, the other party shall be fully indemnified in respect of all actions, suits, claims, demands, costs, charges or expenses arising from any claim by a third party in respect of such Goods (whether such claim relates to intellectual property rights, infringement, personal injury or otherwise) to the extent that the actions, claims, demands, costs, charges or expenses relate to the design of the Goods.
All recommendations and advice given by or on behalf of the Company to the Customer as to the suitability of using the Goods in any manufacturing process or in connection with any other materials are given without liability on the part of the Company.
The Company makes no representation or warranty that use of the Goods does not infringe the rights of any third party and the Company accepts no liability in this respect.
Should the Customer make default in any payment or otherwise be in breach of its obligations to the Company under the Contract or under any other contract with the Company or clause 8.5 becomes applicable, the Company may, by notice in writing to the Customer, without prejudice to any other rights, forthwith suspend or cancel any uncompleted part of the Contract or stop any Goods in transit or require payment in advance or satisfactory security for further deliveries under the Contract.
The Company shall not be liable to the Customer for any loss or damage caused to or suffered by the Customer as a direct or indirect result of the supply of the Goods by the Company being prevented, restricted, hindered or delayed by reason of any circumstances outside the control of the Company including, without limitation, fire, flood, labour dispute, breakdown of machinery, shortage of labour or raw materials and/or damage to or destruction of the Goods and the Company shall be at liberty to suspend or cancel any affected orders for Goods without liability.
The failure of the Company to insist upon the strict performance of any of the terms and conditions of the Contract shall not be construed as a waiver of any such term or condition and shall in no way affect the Company’s right to enforce such provision later.
If any of the terms and conditions of the Contract (or part thereof) shall be found to be invalid, ineffective or unenforceable, the invalidity, ineffectiveness or unenforceability of such term or condition (or part thereof) shall not affect any other term or condition (or the other part of the term or condition of which such invalid, ineffective or unenforceable part forms part) and all terms and conditions (or parts thereof) not affected by such invalidity, ineffectiveness or unenforceability shall remain in full force and effect.
The construction, validity and performance of the Contract shall be governed by English law and by entering into the Contract the parties submit to the exclusive jurisdiction of the English courts save that the Company may at its option take proceedings against the Customer in any other court of competent jurisdiction.