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Sentry Doors Limited Terms and Conditions of Sale
1. In these Terms and Conditions:
2. Application of Terms and Conditions.
These Terms and Conditions shall apply to the Contract for the sale of the Goods entered into by the Seller to the exclusion of any terms and conditions of purchase of the Buyer, including any terms or conditions which the Buyer may purport to apply under any oral communication or purchase order confirmation of order or similar document.
No variation of these Terms and Conditions shall be binding unless agreed to in writing by the Seller.
Any provision of these Terms and Conditions which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision of these Terms and Conditions.
3. Basis of Contract
The Order constitutes an offer by the Buyer to buy the Goods in accordance with these Terms and Conditions.
No binding contract is created until the Order is accepted by the Seller and all prior correspondence or oral communications are to be regarded as superseded and not forming part of the Contract. Prices quoted are subject to revision for errors and omissions at any time.
The description of the Goods will be as set out in the specification of the Buyer and confirmed in the Order.
The Seller reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements. If such amendments will materially change the nature or quality of the Goods, the Seller shall notify the Buyer who may then cancel the Order.
No quotation issued by the Seller shall constitute an offer to sell the Goods referred to therein. All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Terms and Conditions and shall only be binding on the Seller if it is accepted by the Seller in writing.
Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Terms and Conditions.
All prices include delivery or collection within the UK mainland and include only such Goods as are specified in the quotation or offer and are for the quantities therein expressed. If the Buyer shall request any variation any extra cost arising from such variation shall be payable by the Buyer.
Unless otherwise specified prices quoted do not include Value Added Tax (‘VAT’) which will be added at the rate prevailing at the appropriate tax point.
At the Seller’s discretion packaging may be provided and if this is the case such packaging will be included in the price.
The price payable for the Goods shall be the price ruling at the date of delivery or collection and the Seller shall be entitled to adjust the price of the Goods at any time between the date of the order and the date of delivery or collection or the Goods to take account of any or all of the following factors.
6.4.1 where Goods are imported any variation of currency exchange rates or special taxes or charge imposed by any government;
6.4.2 increased costs resulting from the prohibition or other actions or any government;
6.4.3 increased labour costs;
6.4.4 increased material costs;
6.4.5 increased transport costs (if carriage is included in the quoted price);
6.4.6 implementing any request by the Buyer for change in delivery schedules, completion dates, quantities, design or specifications; and
6.4.7 delays caused by instructions or the Buyer or by the failure of the Buyer to give adequate instructions or information.
Time for payment shall be of the essence. Payment shall be made in accordance with the payment terms set out in the quotation and/or Order acknowledgement, made in pounds sterling and payable by cheque or bank payment (BACS or same day transfer).
The provisions of a credit facility for the Buyer is a matter for the unfettered discretion of the Seller as is the amount of credit extended. Should a credit facility be offered it is on condition that it may be reduced or cancelled without prior notice. On withdrawal of credit facility all amounts owed by the Buyer to the Seller shall become immediately payable to the Seller.
The Seller reserves the right to charge interest on all overdue accounts either at the rate of 3% per month above HSBC Bank Plc base rate or, at the Seller’s sole option, at the rate for the time being payable on overdue accounts pursuant to the (Late Payment of Commercial Debts (Interest) Act 1998) of any statutory re-enactment or replacement thereof), but without prejudice to the Seller’s other rights and remedies hereunder.
At any time before the delivery or collection of the Goods the Seller reserves the right to notify the Buyer that any outstanding payment is required prior to delivery and the Seller shall be entitled to withhold supply until payment is made or to cancel the Contract and demand payment or all invoices notwithstanding clause 1 or any other agreement.
The Seller reserves the right at any time to demand security for payment before continuing with or supply of an order.
If the Buyer fails to accept the supply of Goods on or about the date agreed with the Seller the latter reserves the right to charge for Goods as if supply had been affected.
The Buyer may not withhold payment of any invoice or other amount due the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have or for any reason whatever.
Where credit is approved, and unless otherwise expressly agreed, accounts are due for payment not later than 30 days date of invoice.
8. Risk and Title
The Goods shall be at the Buyer’s risk as from completion of delivery.
In spite of delivery having been made title in the Goods shall not pass from the Seller until:
8.2.1 the Buyer shall have paid the price for the Goods plus VAT in full; and
8.2.2 no other sums whatever shall be due from the Buyer to the Seller.
Until title in the Goods passes to the Buyer in accordance with clause 2 the Buyer shall hold the Goods on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other Goods in its possession and marked in such a way that they are clearly identified as the Seller’s property.
Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings. Until title in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.
The Seller shall be entitled to recover the Price (plus VAT) notwithstanding that title in any of the Goods has not passed from the Seller.
Until such time as title in the Goods passes from the Seller, the Buyer shall, upon request, deliver up such of the Goods as have not ceased to be in existence or be sold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under clause 8.10 shall cease.
The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
The Buyer shall insure and keep insured the Goods to the full price against “all risks” to the reasonable satisfaction of the Seller until the date that title in the Goods passes from the Seller, and shall whenever requested by the Seller produce a copy or the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
The Buyer shall promptly deliver the prescribed particulars of the Contract to the Registrar in accordance with Companies Act 1985 part XII as amended, or in accordance with any statutory re-enactment or replacement thereof. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
The Seller shall be entitled to a general lien on all Goods of the Buyer in the Seller’s possession (including Goods of the Buyer which have been paid for) for the unpaid price of all Goods sold to the Buyer under any Contract.
9. Supply – Delivery and Collection
Time of supply of Goods shall not be the essence of the Contract. Delivery or performance dates specified in the Contract are approximate only. The Seller shall not be liable for delay in delivery or supply from any cause whatsoever or howsoever arising, including but not limited to if caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods, nor shall such delay entitle the Buyer to reject the Goods or repudiate the Contract or render the Seller liable for damages in any way.
Unless the Contract provides to the contrary the Seller may deliver or supply by instalment and invoice the Buyer for such instalments on the same Terms and Conditions contained herein.
The Seller shall deliver the Goods to the location set out in the Order. The Buyer may also collect the Goods from the Seller’s premises. Delivery is to the nearest point to the site on a road suitable in the opinion of the driver for the vehicle used. It is the responsibility of the Buyer to provide adequate labour and facilities at the point of delivery to enable the Goods to be unloaded safely and properly. Delivery/collection is complete once the Goods have been unloaded and the delivery/collection ticket has been signed for. The Buyer shall indemnify the Seller against all claims of whatsoever nature arising from such unloading other than in respect of the negligence of any servant or agent of the Seller.
If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller shall have no liability to the Buyer for direct, indirect or consequential loss, howsoever caused (including in negligence) by any delay in delivery except as set out above.
If the Buyer fails to take delivery of the Goods within 3 (three) Business Days of the Seller notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with its obligations under the Contract:
9.5.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Seller notified the Buyer that the Goods were ready; and
9.5.2 the Seller shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
If 10 (ten) Business Days after the day on which the Seller notified the Buyer that the Goods were ready for delivery the Buyer has not taken delivery of them, the Seller may:
9.6.1 store or arrange for storage of the Goods until actual delivery or sale in accordance with clause 9.5.2 and charge the Buyer for all related costs and expenses (including without limitation, storage and insurance); and/or
9.6.2 following written notice to the Buyer, resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
10. Return of Goods
Goods may be returned by the Buyer at the discretion of the Seller if the Goods are in the original packaging if any and undamaged and the Seller has had the opportunity to inspect them. This will not apply in the case of non-standard Goods. A restocking charge of not less than 20% (twenty per cent) of the invoice value of the Goods will be applied in addition to any other costs incurred by the Seller which will be passed on in full to the Buyer.
There is no right to cancel or vary any order once it has been accepted by the Seller. Without prejudice to the general statement where Goods (e.g. doors and frames) are of non-standard nature with respect to size and finish it is most unlikely that the Seller will be able to re-sell them.
The Seller may at its entire discretion accept the cancellation or variation of an order providing it is indemnified in respect of all costs and expenses incurred prior to the cancellation being accepted. In no circumstances is the Seller obliged to accept any cancellation.
If cancellation or variation is accepted the by Seller the request for such must be made in writing by the Buyer and confirmation agreed by the Seller in writing.
The Seller may cancel a Contract at any time before the Goods are delivered by given written notice. On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
The Seller warrants the Goods as per the Seller’s warranty statement that accompanies the Goods, as amended from time to time. Such warranty commences at the date the Goods are delivered to the delivery address.
The Buyer shall inspect the Goods on delivery or collection, as the case may be.
Any variation in quantity from that stated on the Seller’s delivery or collection ticket must be marked on said ticket and countersigned by the Seller’s driver or representative. The Seller shall be under no liability whatsoever for deficiencies not so notified.
Where the Buyer complains of defect or damage the Buyer should take action as in 12.3 if the defect or damage is apparent or if not confirm the complaint in writing within 2 working days from delivery or collection. If a written complaint is not received within 2 Business Days by the Seller then the Seller will be under no liability and the Buyer will be deemed to have accepted the Goods.
The Seller shall not be liable to the Buyer for Goods that are damaged or defective if the Buyer has failed to comply with any instructions provided by the Seller, the Buyer alters the Goods or the defect arises as a result of the Seller following any specification supplied by the Buyer to the Seller.
Any written complaint must include details of the alleged defect or damage and the Seller must be given reasonable opportunity to inspect the Goods in question. If the Goods are agreed to be defected or damaged the Seller may at its option either rectify the defect, replace the Goods or credit the invoice price of the Goods, thereby fully discharging all legal liability in respect thereof. In the event of a credit the value of the credit will not exceed the invoice value of the Goods in question. If the Buyer takes action to rectify an alleged defect without the Seller having inspected the Goods then the Seller will not be liable in any way whatsoever.
In all cases, where the Buyer complains of defects or shortages the Seller shall without prejudice to the question or liability generally be under no liability in any event if it has not been given an opportunity to inspect the Goods before they have been used by the Buyer or a third party.
13. Sale by Sample – Description
Unless expressly agreed in writing between the Buyer and the Seller sale will not be by sample or samples submitted and descriptions or illustrations in trade literature or catalogues shall be treated as showing type, class and general character only and not as importing terms or warranties as to substance, performance colour, quality or dimension and any failure of Goods to conform which such samples, descriptions or illustrations shall not constitute any breach of Contract on the part of the Seller.
Unless expressly agreed in writing between the Buyer and the Seller the Buyer is deemed to have satisfied himself as to the suitability of the Goods for the purpose for which the Buyer required them and it is not a term of the Contract that the Goods are fit for that purpose.
In the cases of colours of timbers, veneers, melamine’s or laminates no adherence to a particular shade of colour nor perfect consistency of colour can be guaranteed by the Seller and a reasonable variation in both cases shall be accepted by the Buyer.
The Seller is entitled to assume that all drawings, descriptions, specifications and other information supplied by the Buyer to the Seller whether written or verbal are all respects complete, accurate and entirely suitable for the Buyer’s requirements. No liability can be accepted for Goods supplied in accordance with information provided by the Buyer.
The Buyer indemnifies the Seller against any third party claims that the specification provided by the Buyer to the Seller infringes their intellectual property rights.
15. Limitation of Liability
All terms conditions and warranties (whether implied or made expressly) whether by the Seller or its servants or agents or otherwise relating to the quality and/or fitness for purpose of the Goods or any or the Goods are excluded, to the extent permitted by law.
Nothing in clause 15 shall exclude or restrict the Seller’s liability for:
15.2.1 death or personal injury caused by its negligence;
15.2.2 fraud or fraudulent misrepresentation; or
15.2.3 any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
Subject to clause 15.2, the Seller shall not be liable for consequential or indirect loss or damage suffered by the Buyer howsoever arising whether or not caused by the Seller’s negligence.
Subject to clause 15.2, without prejudice to the generality of the foregoing the Seller shall not be liable for loss of profits, loss of Contracts and damage to the property of the Buyer or anyone else whatsoever howsoever arising and whether or not caused by the Seller’s negligence.
Subject to clause 15.2, without prejudice to clause 14 of these Terms and Conditions or the Seller’s other rights hereunder the Seller’s total liability, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, to the Buyer for any one claim or for the total of all claims arising from any one act or default of the Seller whether arising from the Seller’s negligence or otherwise shall not in any event exceed a sum equal to the Contract price of the Goods.
16. Care of Goods on Site
It is a condition precedent to any liability that:
16.1.1 all Goods shall be stored in accordance with good trade practice, in a dry place, stacked up right, slightly raised from the ground and adequately protected from the weather and that no internal joinery or doors shall be installed in a building which has not been adequately dried out;
16.1.2 all joinery or doors supplied in the white shall be suitably primed without delay and should not be subjected to exposure to any moisture/water after receipt and all joinery supplied shall receive further coats of paints within a reasonable period and items supplied with a base coat of stain shall receive further coats as soon as possible;
16.1.3 the Buyer shall be restricted from carrying out any adaptation, reworking or other changes to the products supplied without written consent by the Seller, any such work undertaken without written consent will be at the cost to the Buyer and no liability shall be accepted by the Seller;
16.1.4 all joinery and doors shall be installed correctly in accordance with good trade practices and adequate maintained in service;
16.1.5 paintwork or other protective surface finishes of external joinery shall be maintained in service and moisture shall not be allowed to penetrate into the timber;
16.1.6 veneered Goods must not be exposed to sunlight, until final fitment; and
16.1.7 further information regarding the care and handling of Goods is available from the Seller and recognized bodies such as Trada. The British Woodworking Federation (Care of timber doors on site) and the British Standards Institution (BS1 186 part 2 and BS8000 part 5).
17. Subcontracting and Assignment
The Seller shall be free to employ subcontractors.
The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
The Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Seller.
18. Clause Headings
The Clause headings shall not affect the interpretation of these Terms and Conditions.
19. Force Majeure
The Seller shall not be liable for any failure to deliver the Goods arising from a Force Majeure Event.
If the Buyer:
20.1.1 fails to make payment for the Goods in accordance with the Contract; or
20.1.2 commits any other breach of the Contract; or
20.1.3 if any distress or execution shall be levied upon any of the Buyer’s goods or if the Buyer offers to make any arrangements with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolutions or petition to wind-up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if an administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or if the Buyer ceases or threatens to cease to carry on business; or
20.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly; or
20.1.5 if the Buyer shall suffer any analogous proceedings under foreign law,
all sums outstanding in respect of the Goods shall become payable immediately.
If any of the events in clause 20.1 occur, the Seller may in its absolute discretion and without prejudice to any other rights which it may have:
20.1.1 suspend all future deliveries of Goods to the Buyer and/or terminate the Contract without liability upon its part.
20.1.2 exercise any of its rights pursuant to clause 8
Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
No waiver or forbearance by the Seller (whether express or implied) in enforcing any of its rights under a Contract shall prejudice its right to do so in the future.
22. Governing Law and Jurisdiction
All Contracts between the Seller and the Buyer shall be governed and construed in accordance with English Law and all disputes arising in relation to such Contracts shall be submitted to the Jurisdiction of the English Courts.
Any transactions letters, drawings, specifications technical information on prices whether written or verbal supplied by the Seller to the Buyer shall be regarded by the Buyer as confidential and will not be disclosed to others unless agreed in writing by the Seller.
It shall be the responsibility of the person placing the Contract (purchase order) to inform all interested parties involved along the supply-chain of these Terms and Conditions.
25. Divisibility Clause
We may deliver Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment delivery will be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment will entitle you to repudiate or cancel any other Contract or instalment.
Each invoice raised by us to you will be payable in full, without deduction or set off, in accordance with our standard payment terms.
You agree that you will not be entitled to set off any claim against an invoice:
23.3.1 unless you have notified us in writing within 2 days of delivery of any defect or shortage in the Goods delivered;
23.3.2 any claim arising out of the supply of Goods under a Contract other than that which gave rise to the debt forming the subject matter of the invoice.
26. Entire Agreement
The Contract constitutes the whole agreement and understanding of the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of the Contract. Each party acknowledges that it has not relied upon any warranty, representation, statement or understanding other than those expressly set out in these Terms and Conditions.
27. Rights of Third Parties
No term of the Contract shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Contract.