These Terms and Conditions shall apply to the purchase of the goods detailed in this catalogue (“Goods”) by you (“Buyer”) from Simply Precast Accessories Ltd [a company registered in England under number 7162924 whose registered office is at 5 Brooklands Place, Brooklands Road, Sale, Cheshire, M33 3SD (“Seller”). No other terms and conditions shall apply to the sale of the Goods unless agreed upon in writing between the Buyer and Seller.
2.1 A “business day” means any day other than a Saturday, Sunday or bank holiday.
2.2 The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation. 2.3 Words imparting the singular number shall include the plural and vice-versa.
3.1 The description of the Goods are as set out in the Seller’s Brochure and confirmed in a formal quotation. In accepting the quotation the Buyer acknowledges that it does not rely on any other representations regarding the Goods save for those made in writing by the Seller. No descriptions of the Goods set out in the Seller’s Brochure shall be binding on the Seller and are intended as a guide only.
3.2 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform to any applicable safety or other statutory or regulatory requirements.
4.1 The price (“Price”) of the Goods shall be that set out in the Seller’s Brochure current at the date of the Buyer’s order or such other price as may be agreed in writing between the Seller and the Buyer. The Price shall be confirmed in the quotation.
4.2 If the cost of the Goods to the Seller increases due to any factor beyond the Seller’s control including, but not limited to, material costs, labour costs, alteration of exchange rates or duties, or changes to delivery rates, the Seller reserves the right to increase the Price prior to delivery.
4.3 Any increase in the Price under sub-Clause 4.2 shall only take place upon the Seller informing the Buyer of the increase in writing.
4.4 The Buyer may be entitled to discounts subject to and in accordance with any details set out in the Seller’s Brochure current at the date of the Buyer’s order or as may be agreed in writing by the Seller and the Buyer. The Buyer shall not necessarily be entitled to a discount. Any and all discounts shall be at the discretion of the Seller.
4.5 The Price is exclusive of fees for packaging and transportation/delivery.
4.6 The Price is exclusive of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority.
5. Quotation and Basis of Sale
5.1 Details of the Goods in sub-Clause 3.1 are subject to alteration without notice and do not constitute contractual offers to sell the Goods which are capable of acceptance.
5.2 The Seller is not obliged to accept an order from the Buyer if the Buyer does not supply references which are requested by, and satisfactory to, the Seller. If at any time the Seller is not satisfied as to the creditworthiness of the Buyer it may give written notice to the Buyer that no further credit will be allowed to the buyer in which case no further goods will be delivered to the Buyer other than against cash payment.
5.3 The quotation constitutes written acceptance and confirmation by the Seller of the Buyer’s order for the Goods.
5.4 Having issued this quotation which is a contractual offer to sell the Goods, the Seller agrees to enter into a contract for the sale of Goods upon the Buyer’s written acceptance of this quotation and of these Terms and Conditions.
5.5 The quotation (including any non-standard price negotiated in accordance with sub-Clause 4.1) is valid for a period of 30 days only from the date shown overleaf unless expressly withdrawn by the Seller at an earlier time.
5.6 Either the Seller or the Buyer may cancel the order for any reason prior to the Buyer’s acceptance (or rejection) of this quotation.
6.1 Following the Buyer’s acceptance of this quotation, the Seller shall invoice the Buyer for the Price either: (a) on or at any time after delivery of the Goods; or (b) where the Goods are to be collected by the Buyer or where the Buyer wrongfully fails to take delivery of the Goods, at any time after the Seller has notified the Buyer that the Goods are ready for collection or the Seller has tendered delivery of the Goods.
6.2 The Buyer shall pay the Price within 30 days of the date of the Seller’s invoice or otherwise in accordance with any credit terms agreed between the Seller and the Buyer.
6.3 Payment must be made by the Buyer notwithstanding that delivery may not have taken place and/ or that the title in the Goods has not passed to the Buyer.
6.4 If the Buyer fails to make payment within the period in sub-Clause 6.2, the Seller shall suspend any further deliveries to the Buyer, cancel any pending orders from the Buyer] and charge the Buyer interest at the rate of 3% per annum above Barclay’s Bank PLC base rate from time to time on the amount outstanding until payment is received in full.
6.5 Time for payment shall be of the essence of the Contract between the Seller and the Buyer.
6.6 All payments must be made in Sterling unless otherwise agreed in writing between the Seller and the Buyer.
7.1 The Seller shall arrange for the delivery of the Goods on [or as near as reasonably possible to] the delivery date detailed in the quotation to the address specified in the Buyer’s order or to another location as agreed in writing between the Seller and the Buyer.
7.2 If no delivery address is specified by the Buyer or if it is so agreed between the Seller and the Buyer, the Buyer shall collect the Goods from the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection.
7.3 Subject to the specific terms of any special delivery service, delivery may take place at any time of the day and must be accepted at any time of the day.
7.4 If the Buyer fails to take delivery of the Goods the Seller may, at its discretion and without prejudice to any other rights: (a) store or arrange for the storage of the Goods and shall charge the Buyer for all associated costs and expenses including, but not limited to, transportation, storage and insurance; and/or (b) make arrangements for the redelivery of the Goods and shall charge the Buyer for the costs of such redelivery.
7.5 If redelivery is not possible under sub-Clause 7.4(b), the Buyer shall be required to collect the Goods from the Seller’s premises and shall be notified of the same. The Seller reserves the right to charge the Buyer for all associated costs including, but not limited to, storage and insurance.
7.6 If the Seller fails to deliver the Goods on the delivery date other than for reasons beyond its control, the Buyer may give written notice to the Seller within one Week after the delivery date requiring the Seller to deliver the Goods within two weeks of that notice (“Notice Period”).
7.7 If the Seller receives no notice from the Buyer under sub-Clause 7.6, it shall have no liability in respect of late delivery provided that it delivers the Goods at any time after the delivery date.
7.8 If the Seller fails to deliver within either the Notice Period [or the Late Delivery Period (as applicable), the Buyer shall have the right to cancel the order and the Seller shall be liable only for the excess (if any) of the cost to the Buyer of finding suitable substitute goods in the cheapest available market.
8. Inspection of Goods
8.1 The Buyer shall be under a duty to inspect the Goods on delivery or collection.
8.2 If the Goods cannot be examined, the carriers note or such other note as appropriate must be marked “not examined”.
8.3 If the Buyer identifies any damage or shortages it must inform the Seller in writing within 36 Hours of delivery, providing details of the alleged damage or shortage. The Seller shall be under no liability if the Buyer fails to provide such notice.
8.4 The Seller must be permitted to inspect the affected Goods before the Buyer uses, alters or modifies them in any way.
8.5 Subject to the Buyer’s compliance with this Clause 8 and the Seller’s agreement with any alleged damage or shortages, the Seller shall make good any and all damage and shortages within a reasonable time.
8.6 The Seller shall be under no liability for and shall not indemnify the Buyer against any matters arising from damage or shortages.
9.1 Goods may not be returned without the prior written agreement of the Seller.
9.2 Subject to sub-Clause 9.4, the Seller shall only accept returned Goods if it is satisfied that those Goods are defective and that such defects would not be apparent on inspection.
9.3 The Seller shall have the option of either replacing defective Goods within two weeks of receipt of them or shall refund to the Buyer the Price for those Goods which are defective.
9.4 The Buyer may return any Goods within six months of those Goods coming to market (that is, the launch of such goods) within 1 week of delivery provided that: (a) the Buyer bears the risk and cost of returning the Goods; (b) the Buyer indemnifies the Seller against any costs incurred in rectifying any deterioration of the Goods resulting from the Buyer’s incorrect handling or storage of the Goods.
9.5 The Seller shall not be liable for defects arising out of normal wear and tear, the Buyer’s failure to follow any instructions given by the Seller, misuse or alteration of the goods, negligence, wilful damage or any other act of the Buyer, its employees, agents or any other third party.
10. Risk and Title
10.1 Risk of damage to or loss of the Goods shall pass to the Buyer either when the Goods are delivered to the Buyer or when the Seller notifies the Buyer that the Goods are ready for collection.
10.2 If the Buyer wrongfully fails to take delivery of the Goods, risk shall pass to the Buyer at the time when the Seller has tendered delivery of the Goods.
10.3 Legal and beneficial title in the Goods shall not pass to the Buyer until the Seller has received, in cash or cleared funds, payment in full of the Price.
10.4 The Seller reserves the right to repossess any Goods in which the Seller retains legal and beneficial title if full payment is not received in accordance with Clause 6. In the event of such repossession the Buyer shall deliver the Goods in which legal and beneficial title has not passed to the Seller at its own cost.
10.5 The Buyer’s right to possession of the Goods in which the Seller retains legal and beneficial title shall terminate if: (a) the Buyer commits a material breach of its obligations under these Terms and Conditions; (b) the Buyer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors; (c) the Buyer enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or (d) the Buyer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertakings or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Buyer, notice of intention to appoint an administrator is given by the Buyer or any of its directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer.
11. Rights, Warranties and Liability
11.1 Subject to these Terms and Conditions and except where the Buyer is purchasing the Goods as a consumer, all warranties, conditions or other terms implied by statute or common law (save for those implied by Section 12 of the Sale of Goods Act 1979) are excluded to the fullest extent permitted by law.
11.2 The Seller shall not be liable for any loss or damages of any nature, direct or indirect, including any loss of profits or consequential damages suffered or incurred by the Buyer for whatever reason.
11.3 The exclusions of liability contained within this Clause 11 shall not exclude or limit the liability of the Seller: (a) for death or personal injury caused by the Seller’s negligence; (b) for any matter for which it would be illegal for the Seller to exclude or limit its liability; and (c) for fraud or fraudulent misrepresentation.
12.1 All notices under these Terms and Conditions shall be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
12.2 Notices shall be deemed to have been duly given: (a) when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; (b) when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated; (c) on the fifth business day following mailing, if mailed by national ordinary mail; or (d) on the tenth business day following mailing, if mailed by airmail.
12.3 All notices under these Terms and Conditions shall be addressed to the most recent address, email address or fax number notified to the other party.
13. Force Majeure
Neither party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
14. No Waiver
No waiver by the Seller of any breach of these Terms and Conditions by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
In the event that one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that those provisions shall be deemed severed from the remainder of these Terms and Conditions (which shall remain valid and enforceable).
16. Law and Jurisdiction
16.1 These Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
16.2 Any dispute, controversy, proceedings or claim between the Seller and the Buyer relating to these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
17. Divisibility Clause
The Supplier will be entitled to perform or make delivery of Services and/or Goods by instalments and to invoice the Customer for each instalment performed or despatched. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.