TM Gray SEPAmatic – TERMS AND CONDITIONS (Version 1)
The customer’s attention is drawn in particular to the provisions of clause 11.
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 13.6.
Contract: the contract between the Supplier and the Customer for the sale of the Goods and / or the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases or agrees to purchase the Goods and / or Services from the Supplier.
Force Majeure Event: has the meaning given in clause 12.
Goods: the goods (including any instalment of the goods or any part of them) which the Supplier is to supply in accordance with the Conditions.
Order: the Customer’s order for the Goods and / or Services, as set out in the Supplier’s written acknowledgement of order.
Services: any services provided by the Supplier to the Customer as set out in the Order.
Specification: (i) (in the case of Goods) any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier or stated in the Order; and (ii) (in the case of Services) any description or specification for the Services that is agreed in writing by the Customer and the Supplier or stated in the Order.
Supplier: Timothy Gray trading as t m gray SEPAmatic whose place of business is at Wick Farm, West Kington Wick, Chippenham, Wiltshire SN14 7JD.
1.2 Construction. In these Conditions, the following rules apply:
(a) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) Words in the singular include the plural and in the plural include the singular and a reference to one gender includes a reference to the other gender.
(d) A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 Any order or acceptance of a quotation for the Goods and / or Services by the Buyer shall be deemed to be an offer by the Buyer to buy the Goods and / or Services subject to these Conditions.
2.3 No order placed by the Buyer shall be deemed accepted by the Supplier until the Supplier issues the Order at which point (and not before) an Order is deemed to be placed and the Contract is formed.
2.4 The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods and / or any Services described in them. They shall not form part of the Contract or have any contractual force.
2.7 A quotation for the Goods and / or Services given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue provided that the Supplier has not previously withdrawn it.
3.1 The Goods are described in the Order and the Specification.
3.2 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4.1 The Supplier shall deliver the Goods to the delivery address stated in the Order (“Delivery Address”) on the delivery date stated in the Order.
4.2 Delivery of the Order shall be completed when the Goods arrive at the Delivery Address (and before they are unloaded).
4.3 Any dates specified for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 If the Supplier fails to deliver the Goods, the Supplier’s liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Customer fails to accept delivery of the Goods within 3 Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
(a) 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 Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.6 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.7 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.8 Where installation is not specified as part of the Services in the Order, the Customer shall be responsible for and bear all risks in relation to the installation of the Goods.
5.1 The Supplier warrants that on delivery the Goods shall:
(a) conform with the Specification; and
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the Supplier:
(i) within 3 Business Days following delivery of the Goods; or
(ii) (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after the Customer has discovered or ought reasonably to have discovered the defect but in any event within 12 months following delivery of the Goods,
that some or all of the Goods do not comply with the warranty set out in clause 5.1,(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, where the Goods are defective refund the Customer’s reasonable cost of returning the Goods under clause 5.2(c) and at his option, repair or replace the defective Goods, or refund the price of the defective Goods in full. For the avoidance of doubt, the Supplier may at his discretion, as an alternative to requesting that the Customer returns the Goods to the Supplier’s place of business, request that the Customer sets the Goods aside so that the Supplier may inspect the Goods at the Customer’s place of business.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery of an Order in accordance with clauses 4.1 and 4.2.
6.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other goods or services that the Supplier has supplied to the Customer.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.2; and
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 10.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. SUPPLY OF SERVICES
7.1 The Supplier shall provide the Services to the Customer in accordance with the Specification in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance date for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8. CUSTOMER’S OBLIGATIONS
8.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide the Supplier, his employees, agents, consultants and sub-contractors, with access to the Customer’s premises and other facilities as reasonably required by the Supplier to provide the Services;
(c) provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(d) prepare the Customer’s premises for the supply of the Services;
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(f) keep and maintain all materials, equipment, documents and other property of the Supplier (“Supplier Materials”) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
(g) if in the reasonable opinion of the Supplier it is necessary to remove or otherwise disconnect any of the existing equipment at the Delivery Address in order to carry out Services, the Customer shall permit and obtain all necessary consents for such removal and / or disconnection and shall give the Supplier all necessary assistance to enable such work to be carried out.
8.2 If the Supplier’s performance of any of his obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
(a) the Supplier shall without limiting his other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve him from the performance of any of his obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of his obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of his obligations as set out in this clause 8.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9.1 The price of the Goods and Services shall be the price set out in the Order and is subject to adjustment in accordance with clauses 9.2 and 9.3. Where the Services are charged on the basis of time spent, the Supplier’s hourly rate shall be stated in the Order. Any deposit received by the Supplier shall be accepted by the Supplier as part payment towards the price stated in the Order which deposit shall be non-refundable.
9.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, increases in transport and fuel costs, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
9.3 Where the price for the Services is fixed and there is any delay in the performance of the Services (and the Supplier is not responsible for the delay), the Supplier reserves the right to charge at the rate specified in the Order for the additional time spent by the Supplier or any of the Supplier, his agents or sub-contractors in performing the Services.
9.4 Unless stated in the Order, the price for the Goods excludes costs and charges of packaging, insurance and transport of the Goods which shall be invoiced to the Customer.
9.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and / or Services at the same time as payment is due for the supply of the Goods or Services.
9.6 The Supplier may invoice the Customer for the Goods and / or Services on or at any time after the date of the Order.
9.7 The Customer shall pay the invoice in the currency stated in the Order by the due date stated in the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
9.8 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Lloyds Bank Plc’s base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.9 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies the Supplier may have, set off any amount owing to the Supplier by the Customer against any amount payable by the Supplier to the Customer.
10. CUSTOMER’S INSOLVENCY OR INCAPACITY
10.1 If the Customer becomes subject to any of the events listed in clause 10.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend the Services or all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered and Services supplied to the Customer shall become immediately due.
10.2 For the purposes of clause 10.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay his debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;]
(g) (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2(a) to clause 6.4(h) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
10.3 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.
11. LIMITATION OF LIABILITY
11.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by the Supplier’s negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982;
(e) defective products under the Consumer Protection Act 1987; or
(f) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
11.2 Subject to clause
11.1:(a) the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the price of the Goods or, in the case of Services, the total price paid to the Customer to the Supplier for the Services.
11.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods Act and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
12. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
13.1 Assignment and subcontracting.
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of the Supplier’s rights or obligations under the Contract.
(b) The Customer 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 Supplier.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, or e-mail (provided that receipt is acknowledged by the receiving party within 2 Business Days of the e-mail being sent) or fax.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2(a)); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.6 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the authorised representatives of the Supplier and the Customer.
13.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.