Terms & Conditions of Sale
TERMS & CONDITIONS OF SALE
In these terms, the following words shall have the following meanings:
‘Buyer’ means any person placing an order with the Company for the purchase of the Goods.
'Buyer's Provisions' has the meaning given in Clause 3.1.
‘CDM Regulations’ means the Construction (Design and Management) Regulations 2007 as amended from time to time ‘Company’ has the meaning CHESNEY’S LIMITED (Registered No. 01322949) of 194-204 Battersea Park Road, London SW11 4ND.
'Conditions' has the meaning given in Clause 13.4.
'Delivery Date' means the date upon which the parties have agreed that the Goods shall be installed, delivered to or collected by the Buyer.
‘Director’ means a person holding office as a Director of the Company.
‘Due Date’ means the date which precedes by a minimum of 10 days the installation, delivery or collection of the Goods.
'Goods' means those items offered for purchase by the Buyer.
‘Insurance Events’ means any and all fire, lightening,explosion, storm, tempest, flood, bursting or overflowing water tanks,apparatus or pipes, earthquake, aircraft or other ariel devices or articles dropped there from, but not any event associated with radioactivity however caused or from pressure waves caused by aircraft. ‘Intellectual Property’ means the Know-how, Trade Marks and intellectual property including without limitation,copyright, design rights, patents, patent applications and rights in respect of confidential information.
‘Manufactured Goods’ has the meaning given in Clause 9.
‘Premises’ has the meaning Units 15&16 Parkfields Industrial Estate, Culvert Place, London SW11 5BA [and] 194-204 Battersea Park Road, London SW114ND.
'Price' has the meaning given in Clause 6.
‘Project’ means the works to be carried out and completed at the Site as described in Annex A.
‘Services’ means the services to be performed by the Company.
‘Site’ shall be the description to which the Goods shall be delivered and installed.
‘Specification’ means the document describing the technical details of the Manufactured Goods.
The Buyer orders and the Seller agrees to sell, the Goods at the Price for delivery by the Delivery Date, all subject to the provisions of this Agreement. This Agreement shall only be binding upon the Company once the Company acknowledges receipt from the Buyer of at least 50% of the value of the Price, except in the case of antique items where 100% of the Price shall be required.
3. Conditions Applicable
3.1 The express provisions of this Agreement shall apply to the sale of the Goods by the Company to the Buyer.
3.2 Any provisions not set out in this Agreement, including those of the Buyer which the Buyer applies or purports to apply, shall not be the terms and conditions concerning the sale of the Goods by the Company to the Buyer, however such provisions are introduced (including but not limited to provisions included on purchase order(s), confirmations of order or similar documents)('Buyer's Provisions').
3.3 For the avoidance of doubt, the Buyer acknowledges and agrees that the Seller shall not be bound by any of the Buyer's Provisions.
3.4 An order for the Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to the provisions of this Agreement.
3.5 Any variation of the provisions of this Agreement(including any special terms and conditions agreed between the Company and the Buyer) shall be inapplicable unless agreed in writing by a Director of the Company.
3.6 The Company expressly reserves the right to appoint agents to perform any part of this Agreement.
4.1 The Buyer acknowledges and agrees that any description given of or applied to the Goods: is only for the purpose of identifying the Goods; and shall not make this Agreement a sale by description; and is not relied on by the Buyer when entering into this Agreement.
4.2 The Buyer acknowledges that Goods such as but not limited to antiques, discontinued lines, and ex-display fire surrounds may have pronounced naturally occurring colour variances, naturally occurring fossils,veining and other markings. The Buyer also acknowledges that such Goods used for display and/or advertising and publicity purposes may also have minor damage caused in the course of handling.
5.1 The Buyer acknowledges and agrees that where a sample of the Goods has been shown to and/or inspected by the Buyer: the sole purpose of so doing was to enable the Buyer to judge the quality of the bulk; and does not constitute a sale by sample.
6.1 The Buyer shall pay the Price for the Goods as stated on the invoice and not as stated in any quotation, estimate or documentation, or given orally.
6.2 The Company will endeavour to maintain the prices shown on the Company’s price list, but the Company shall have the right to amend the Price resulting from:
i) Restoration or manufacture of Goods produced to the Buyer’s order;
ii) Any and all amendments or additions to the Buyer’s instructions;
iii) Any and all required equipment for work on Site
iv) Any and all interruptions to, delays or additional work arising from causes for which the Company is not responsible;
v) Any and all amendments to applicable taxes or levy imposed upon on the Goods or their supply
vi) Any and all amendments to applicable exchange rates
6.3 Any and all agreed discounts shall be included in the Price.
7.1 Payment for the Goods shall be made be made by the Due Date except for:
i) any Goods where immediate payment is requested including those Goods stipulated by Clause 4.2; or
ii) where any credit facilities have been expressly made or extended by the Company
Where Goods are to be installed or delivered to a Project,all costs must be paid in full prior to the Due Date.
7.2 The Buyer shall not be entitled to withhold payment of any invoice by reason of any right or set off or any claim or dispute with the Company, whether relating to the quality or performance of the Goods or otherwise.
7.3 Any deposit shall be held by the Company as a deposit and not a part payment. The Company shall have the right to suspend performance of its obligations under this Agreement. All amounts stated are exclusive of VAT and/or any other applicable taxes or levy, which shall be charged in addition at the rate in force at the date any payment is required from the Buyer.
7.4 If payment is not received by the Due Date, the Company shall be entitled: to charge interest on the outstanding amount at the rate of4% per annum above the base lending rate of Barclays Bank plc minimum lending rate, accruing daily; to charge at the Company’s absolute discretion charge a fee of 20% of the value of any order that is cancelled by the Buyer in lieu of retaining the full amount of any deposit or payment. to require that the Buyer make a payment in advance of any delivery not yet made; not to make any delivery.
8.1 The cost of delivery shall be in addition to the Price.The cost shall be subject to the method of delivery, and shall be payable at the same time and in the same manner as the Price.
8.2 For the avoidance of doubt, the Delivery Date or other date given under this Agreement is no more than an estimate, and shall not be of the essence.
8.3 If this Agreement is varied for the delivery of Goods by instalments (including collection and installation) then failure by the Company to deliver one or more instalments shall not entitle the Buyer to claim compensation or to terminate or suspend this Agreement and/or reject those or subsequent deliveries.
8.4 If the Company agrees to deliver (or to arrange delivery of, including collection and installation) the Goods to a place nominated by the Buyer, delivery shall be effected when delivery is tendered during normal working hours and suitable assistance given to the delivery driver on large or heavy items.
8.5 If the Buyer does not accept delivery (including collection and installation) of the Goods in accordance with this paragraph 8,the Company may at its absolute discretion arrange for the storage of the Goods on the buyer’s behalf but without any liability whatsoever for any loss or damage after the Delivery Date.
8.6 The Buyer shall in addition to the Price, pay on demand all charges for storage, insurance and transport occasioned by the Buyer’s failure to accept the Goods on the Delivery Date
8.7 Where the Goods are collected by the Buyer or its agent, the Company shall not be liable for any loss or damage caused to the Goods whilst in the possession of the Buyer or its agent.
8.8 It shall be the responsibility of the Buyer to examine the Goods on delivery (including collection and Installation and notify the Company of any defects or short delivery at the time of delivery (including collection and Installation. If the Buyer fails to notify the Company of such defects or short delivery at the time of delivery including collection and Installation) the Company shall be discharged from all liability (whether arising in negligence or otherwise) arising from short delivery or such defects.
9. Goods by Manufacture
9.1 This clause 9 applies where the Buyer requires Goods to be manufactured by the Seller and the Seller agrees to manufacture the Goods all subject to the provisions of this Agreement.
9.2 The Company warrants that it has the necessary skills,expertise and capabilities to manufacture the Goods in accordance with the Specification.
9.3 The Company warrants that the Goods will comply with all applicable legislation, regulations and standards.
9.4 All documentation, specifications and artwork provided by the Company to the Buyer for use on or in relation to the Goods and the packaging for the Goods (and the Intellectual Property in it) are, and shall remain, the property of the Company.
9.5 The Buyer shall not represent, warrant or undertake that it has any rights in or title to the Intellectual Property, and in particular the trade Marks and/or the Know-how. The Buyer represents, warrants and undertakes that it shall not, whether by act or omission, allow the rights of the Company to be impaired with regard to the Intellectual Property, the trade Marks and/or the Know-how.
9.6 Each party undertakes to maintain as secret and confidential all Know-how and other technical or commercial information obtained directly or indirectly from the other party in the course of or in anticipation of this Agreement and to respect the other party’s rights therein.
10.1 Installation of Goods is by appointment only.
10.2 Should an appointment be cancelled or postponed through no fault of the Company, a day work rate per man of £450 plus VAT (or such rate as then obtains as determined by the Company from time to time) shall be charged for any day or part thereof.
10.3 All installation shall be carried out between the hours of 8am to 5.30pm Monday to Friday.
10.4 The Buyer shall, if so requested by the Company,supply to the Company any necessary and relevant data and information and the Buyer shall give or request the other Contractors or any of them to give such assistance to the Company as shall be required by the Company in the performance of the Services.
10.5 The Buyer shall ensure at all times that the Site is suitable for mechanical fixing of the Goods. All mechanical fixing of the goods will be carried out in accordance with the Company’s method statement and subject to a COSHH risk assessment.
10.6 The Buyer shall ensure that the following is provided at the Site:
(a) 110V power
(b) Task lighting
(c) Mains water supply
(d) Waste disposal bins
10.7 The Buyer shall ensure that adequate protection of all fixtures and fittings on Site is provided prior to delivery and installation.The Company accepts no liability whatsoever for any damages where such adequate protection is not on Site.
10.8 The parties warrant that each will comply with the provisions of the Health and Safety at Work Act 1974 and undertake all risk assessments and method statements as required by regulations relating to but not limited to such matters as manual handling, hazardous substances, noise and personal protective equipment.
10.9 The parties warrant that each shall conform to the provisions of the CDM Regulations and approved Codes of Practice issued periodically by the Health and Safety Executive.
10.10 The Buyer shall indemnify the Company against any liability, damage or claim resulting from personal injury or death of any person or damage to any property of any other persons arising from the carrying out of the Works save insofar as the same result from any breach of contract,negligence or breach of statutory duty on the part of the Company.
11.1 The Company acknowledges that the Buyer’s appointment of the Company for a Project relies on the Company’s representations to the Buyer in relation to the Company’s competence to perform the function of designer for the purpose of the CDM Regulations.
11.2 The Company shall comply with all the obligations imposed on it as a ‘designer’ under the CDM Regulations insofar as the same apply to the Project.
11.3 The Company does not and will not act as a designer if acting under DOM 1 or DOM 2 JCT agreements unless such variation is agreed in accordance with clause 3.4 of this Agreement.
The risk in the Goods shall pass to the Buyer on the Delivery Date.
The property in the goods shall not pass to the Buyer until the Company has received the payment of the Price (and any other sums that are due or owing to the Buyer in addition to the Price) in full and in cleared funds, whether or not installation, delivery or collection has been made.
14. Acknowledgement of Examination
The Buyer acknowledges and agrees:
14.1 That the Company has given the Buyer a reasonable opportunity to inspect the Goods;
14.2 That the Buyer has inspected the Goods;
14.3 That the Buyer has satisfied itself as to the condition of the Goods;
14.4 That the Company has not given any warranty or condition as to the quality of or fitness for any purpose of the Goods except in the case of gas firs for which a 1 year warranty shall be given to the Buyer, such warranty being valid from the date of certification
14.5 That all conditions or warranties, express or implied(whether by statute or otherwise) are expressly excluded;
14.6 That delivery of the Goods to the Buyer shall be conclusive evidence that the Buyer has examined the Goods and that the Goods are in conformity with the contract description, in good order and condition,of satisfactory quality and fit for any purpose for which they may be required.
15.1 The Company shall not incur or accept any liability concerning any representation made by the Company (or made on the Company's behalf) to the Buyer (or any person acting on behalf of the Buyer) prior to the making of this Agreement where such representation was made or given in relation to the Conditions.
15.2 The Company shall not accept any liability to the Buyer concerning any express term or provision of this Agreement where such a term relates to the Conditions.
15.3 All terms, conditions or warranties implied by statutory or common law relating to the Conditions are excluded from the Agreement to the fullest extent permitted by law.
15.4 The 'Conditions' shall mean:
15.4.1 The correspondence of the goods with any description; and/or
15.4.2 The quality of the goods; and/or
15.4.3 The fitness of the goods for any purpose(s)whatsoever (whether made known to the Company or not).
16.1 The Company shall insure the Goods against the Insurance Events up to the Delivery Date.
16.2 Such insurance shall cover any unfixed materials intended for the installation of the Goods.
17.1 Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either Party may terminate this Agreement by written notice to the other Party.
17.2 This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
17.3 Each Party to this Agreement shall at the request and expense of the other or any of them execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
17.4 If any provision of this Agreement is prohibited bylaw or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
17.5 The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the parties submit.