Terms & Conditions - Wetherby Building Systems Ltd

Wetherby Building Systems Limited Terms of Business

Definitions
1.1 The following terms shall have the following meanings unless the context otherwise requires:
“Specifier” Any architect, engineer or other party whatsoever (whether qualified or not giving instructions of any kind directly or indirectly to Wetherby Building Systems Limited.
“Buyer” Any person, firm or company who negotiates with or contracts to purchase Goods whether directly or through an agent and whether for resale or otherwise.
“Customer” Any Customer by resale of the Buyer.
“Force Majeure Event” an event as defined in clause 9
“Goods” Any Goods supplied by Wetherby Building Systems Limited to or to the order of the Buyer.
“Wetherby Building Wetherby Building Systems Limited, hereafter referred to as WBS or The Company.
Systems Limited”
“Interest Rate” the rate specified in the ‘Late Payment of Commercial Debts (Interest) Act 1998’ as the combination of the reference rate and 8% which applies to any contract incorporating these terms.
1.2 Headings are given for convenience only and do not affect the interpretation of these conditions.
Application and Variation of the Conditions
2.1 These conditions apply to all contracts made in respect of sales of Goods and services supplied by WBS to the Buyer.
2.2 Variations to these conditions shall only be valid if made in writing or by telephone and confirmed in writing under the hand of a Director of WBS.
2.3 The Buyer by placing an order with WBS:
2.3.1 Accepts and acknowledges that the conditions form part of the contract between the parties and;
2.3.2 Agrees that any conditions of the Buyer are not incorporated into the contract and specific Buyer’s conditions shall only have effect to the extent that they have been expressly agreed in writing by WBS.
2.4 The contract is between the parties as principals and the Buyer may not assign the benefit of the contract without the written consent of the company.
2.5 WBS advertising material shall not form any part of the conditions without the written consent of the company.
2.6 WBS technical data and other specific written specifications only apply for a reasonable period of time from the date on which they were prepared.
2.7 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of WBS which is not set out in the Contract
Quotations
3.1 Subject to the conditions, any quotation of WBS shall be effective for a period specified by WBS or (if no date is specified) until the date on which WBS next price list is published.
3.2 Unless otherwise specified, prices of Goods shall exclude:
3.2.1 the cost (as quoted by WBS) – of delivery (which shall be to mainland England, Scotland and Wales only). WBS shall have the right to determine method of delivery;
3.2.2 packaging, packing, import or export clearances, shipping, carriage, insurance, unloading and unpacking at the delivery address or any other duties or levies.
3.3 Unless otherwise specified, prices of Goods quoted are exclusive of Value Added Tax which will be payable to WBS by the Buyer.
Variation of Quotation
4.1 In the event that the Buyer (after ordering the Goods):
4.1.1 Gives to WBS instructions for the supervision and/or delay of its order or its completion, or
4.1.2 Failing to give further adequate instructions for the proper completion of its order, or
4.1.3 Returning or failing to accept delivery of the Goods.
WBS shall have the right to charge for the work done, all products ordered and for additional expenses incurred including (but without prejudice to the generality of the foregoing) the cost of storage incurred and transport by reason of such instructions or lack of them.
4.2 Any discounts given to the Buyer are given ex gratia and not of right and do not represent a pattern of trading.
Customer Purchase Orders
WBS undertake to notify the customer on receipt of an order if the products ordered are non-stock, non-returnable materials. All such materials must be delivered, invoiced and paid for at quoted prices unless specifically agreed by a Director.
All products manufactured or tinted apart from white and subsequently cancelled will be liable for disposal costs.
Delivery
6.1 WBS shall ensure that each delivery of the Goods is accompanied by a proof of delivery (POD) which shows the date of the order, all relevant Buyer and WBS reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered and whether the Goods are specially made to order.
6.2 WBS shall deliver the Goods to the location set out in the order or such other location as the parties may agree (Delivery Location) at any time after WBS notifies the Buyer that the Goods are ready. If by agreement specified in the order, the Buyer is to collect the Goods from such location as may be advised by WBS (including WBS’ own premises)
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then that shall be the Delivery Location and collection shall be within 3 Business Days of WBS notifying the Buyer that the Goods are ready.
6.3 Delivery of the Goods shall be completed on the collection of the Goods’ from the Delivery Location OR on the completion of unloading of the Goods at the Delivery Location.
6.4 Delivery of Goods shall be evidenced by a person at the agreed destination signing the delivery note and purporting to receive the goods on behalf of the Buyer or on behalf of the agreed main contractor of the Buyer at such destination or his duly authorised representative.
6.5 Time and Delay
6.5.1 The time and place for delivery will be agreed between the parties but shall not be of the essence of the contract unless specifically agreed otherwise as an amendment to these conditions.
6.5.2 WBS will use its reasonable endeavours to keep the date of delivery requested but WBS shall not be responsible for any damages or loss (whether direct or indirect) occasioned to the Buyer or any third party claiming through the Buyer by reason of a delay, failure to deliver or short delivery.
6.5.3 The Buyer will indemnify WBS against all claims by a third party against WBS for damages directly or indirectly ascribable to delay, failure to deliver or short delivery.
6.5.4 If there is any delay in delivery for any reason beyond the control of WBS then;
(a) A new delivery date shall be fixed by WBS in the light of the circumstances of the delay, and
(b) The Buyer shall take delivery of the Goods at such reasonable time as WBS is able to deliver them or
6.5.5 arrange their delivery. Upon the Buyer giving WBS such indemnity and security as WBS shall reasonable require, WBS may allow the Buyer to use the name of WBS or if necessary, may join the Buyer as claimant in any proceedings against those responsible for the delay.
6.6 Consignment Delivery
6.6.1 WBS at its discretion may make deliveries by separate consignments. Such deliveries made at the customer’s request will incur additional haulage charges to be invoiced to the customer.
6.6.2 Where delivery is made by separate consignments each consignment shall at the option of WBS constitute a separate contract and if any consignment or delivery is not paid for pursuant to these conditions WBS may withhold delivery of further consignments.
6.6.3 The Buyer shall not be entitled to refuse to take delivery or refuse to pay for any consignment on these grounds that the previous consignment was defective, delivered late or otherwise.
Terms of Payment
7.1 TIME IS OF THE ESSENCE in respect of this clause 7.
7.2 Subject to any alternative credit terms agreed in writing by WBS, payment for Goods shall be made in sterling cash (or other currency as may be determined by the Buyers territory) not later than the 20th of the month following the month in which delivery of the Goods is made, or in which risk passes under clause 7.1, whichever is the sooner.
7.3 WBS may at its discretion and at any time withdraw or vary any credit terms (or discounts). Credit accounts not used for an extended period at the discretion of WBS may be closed without notice and/or alternative terms imposed.
7.4 All payments shall be made:
7.4.1 To WBS without any deduction or deferment on account of disputes or cross claims whatsoever whether or not the same might be invoked by way of set-off or defence under s53 of the Sale of Goods Act 1979 or otherwise, and:
7.4.2 Shall be made payable to “Wetherby Building Systems Limited” and remitted direct to the bank account specified by WBS and forwarded to WBS Limited, 1 Kid Glove Road, Golborne, WA3 3GS.
7.5 In no circumstances shall any payments due to WBS be made payable to representatives or employees of WBS.
7.6 All payments received shall be first set against the monies due under or pursuant to the oldest outstanding invoices.
7.7 In the event of any payment not being made by the Buyer by the due date:
7.7.1 WBS shall be entitled to claim and the Buyer shall pay to WBS if claimed:
(a) Interest on the outstanding amount at the Interest Rate from the date of invoice (or the date at which the invoice became due for payment at the discretion of WBS) until payment is received by WBS.
(b) All expenses and costs including agency or professional fees incurred by, or for WBS in the course of any action to recover late payments. All accounts beyond our credit terms will be passed to either our credit insurer whose charges may vary and/or our debt collection agency., Their charges are 15% plus VAT and all accounts, without exception, will be subject to this additional charge to cover their costs in recovery. These accounts will also be subject to any legal debt recovery costs incurred in obtaining settlement whether pursuant to section 3(2) of the Late Payment of Debt Regulations 2013, (Statutory Instrument 2013 No. 395 “2013 Regulations”) or such other statutory provisions as may apply from time to time. WBS may at its discretion appoint an alternative agent to assist with the collection process whose costs may vary but will be passed on to the Buyer in the same manner.
7.7.2 In the case of all Goods the entire consignment must be paid for including parts of a consignment which the Buyer refuses to accept delivery of or which it seeks to return (both referred to as Unwanted Goods). If in its sole discretion WBS determines and confirms to the Buyer (within 3 working days of the Buyer’s refusal to collect or accept delivery of Unwanted Goods or it indicating its intention to return goods whether written or oral) that it is able to resell the Unwanted Goods, then subject to levying a restocking charge, WBS will return undelivered Unwanted Goods to stock and will accept delivery (by the Buyer and at its expense) of returned Unwanted Goods for restocking. In the case of Unwanted Goods made to order (or which have less than 2 months of useful life left) which WBS determines and confirms to the Buyer that it is not able to resell, WBS may immediately claim the full price of the Unwanted Goods without obligation to sell or deliver them up to the Buyer. WBS may
7.7.2.1 set-off any liability it has or may have under any other contract between WBS and the Buyer against the sums unpaid.
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7.7.2.2 retain or withhold from delivery or collection any Goods the subject of this or any other order made by the Buyer to WBS.
7.8 In the case of any agreement (in writing reflected on the face of the order) for payment by instalments then if the Buyer does not pay any instalment by its respective due date then:
7.8.1 The total outstanding amount due or to become due in respect of the Goods shall become payable forthwith, and:
7.8.2 Interest shall be payable by the Buyer on the total outstanding amount due at the interest Rate from the date of the invoice of the instalment until the said total outstanding is paid.
7.9 If the Buyer does not comply with the agreed terms of payment; or compounds with its creditors; or becomes insolvent;
or passes a resolution for its liquidation; or a winding up petition is issued against the Buyer all monies then outstanding shall become immediately due and payable irrespective of any agreed terms for payment and WBS may recover all such sums as a debt.
Risk and Ownership
8.1 Risk
8.1.1 The risk in the Goods shall pass to the Buyer:
(a) At the point that the Goods are off-loaded at the destination required by the Buyer, or:
(b) In the event of WBS not being required to deliver the Goods or the Buyer refusing to accept delivery of the Goods) at such time as the Buyer is notified that the Goods are ready for collection or has refused delivery (as the case may be).
8.1.2 The Buyer undertakes to insure the Goods with a reputable insurer as soon as the risk in the Goods passes to it until payment for the Goods has been made in full to WBS.
8.2 Ownership
8.2.1 Notwithstanding the delivery or the passing of risk the ownership in the Goods shall remain in WBS until the Buyer has paid all monies owed by it to WBS under the contract relating to those Goods.
8.2.2 Until such payment is made the Buyer shall hold on a fiduciary basis only all Goods (or their sale proceeds in the event of a sale on in breach of this clause) which have been either sold to or affixed to a surface belonging to a third-party subject to the ownership vested in WBS by virtue of this clause.
8.2.3 If any payment is outstanding WBS may (without prejudice to any of its other rights and remedies) recover and re-sell any or all of the Goods remaining in his ownership and for that purpose may enter upon any premises to which the Buyer has a right of access and for such purpose, the Buyer so far as it is able, grants such right of access to WBS as its Agent.
8.2.4 At the request of WBS the Buyer shall disclose to WBS the location of any site for which the Goods were intended and/or used or to which they were sent.
8.2.5 On any sale by the Buyer of Goods supplied by WBS (before the ownership in those Goods is vested in the Buyer), any rights which the Buyer may have against the Customer shall automatically vest in WBS.
8.2.6 WBS shall (without prejudice to any other rights or remedies it may have) be entitled to make a claim directly against the Customer for any purchase money unpaid by the Customer provided that WBS shall return to the Buyer any monies recovered in excess of the amount then owed by the Buyer to WBS together with costs and expenses involved in making such claim.
8.2.7 The Buyer agrees that WBS may (without prejudice to any other rights or remedies it may have) agree with the Specifier, the Customer or any employer or main or intermediate contractor on any building site where the Goods are intended to be used make payment direct to WBS.
8.2.8 If WBS notifies the Buyer that the Goods are ready for delivery to or collection by the Buyer and then the Buyer defers delivery or collection, the Buyer is deemed to have instructed WBS to hold such Goods and WBS shall be at liberty to store such Goods at the Buyers expense and risk at such premises as are decided upon by WBS.
8.2.9 WBS has no obligation to accept returns on unwanted goods except in cases of over-delivery in error by WBS or in the case of faulty goods where WBS have accepted liability in this respect. Any return of unwanted goods is at the discretion of WBS and a handling charge (variable) and return carriage will be levied.
Force Majeure
WBS shall be under no liability to the Buyer if it is prevented from or delayed in carrying out its obligations or any part thereof under this contract or any quotation or order and/or from making delivery by reason of a Force Majeure Event. A Force Majeure Event means any event beyond WBS’ reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including acts of God, epidemics, war, shortages of labour or materials, terrorism, riots, civil commotion, interference by civil or military authorities, national or international calamity, lock outs, strikes or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fire, drought, flood, storms, earthquakes, loss at sea, accidents to workmen or machinery, government controls, restrictions or prohibitions or other government action or omission, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors or any other cause beyond its control.
Warranty, Defective Goods and limitations of Liability
10.1 Warranty
10.1.1 The warranties given by WBS in respect of any Goods not manufactured by it are limited to the warranties received by it from its own supplier. Details of these warranties (if any) will be available upon written request from WBS.
10.1.2 WBS Warrants that on delivery and for a period of [12] months from the date of delivery (warranty period) subject to compliance with clause (c) these terms and this clause 10.1 in particular, the Goods shall:
(a) conform in all material respects with their description and any applicable specification;
(b) be free from material defects in design, material and workmanship
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(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and be fit for any purpose held out by WBS
10.1.3 Goods must be stored in accordance with the instructions set out on any packaging or in the specification delivered to the Buyer or Specifier of which the Buyer is deemed to have notice. Different components have different shelf lives and/or requirements for storage and details can be obtained from WBS.
10.1.4 WBS will make reasonable efforts to maintain colour shade, texture and/or finish of goods between production batches or consignments – (“the finishes”) without incurring any liability if the finishes are not maintained. If the finishes differ between one consignment and another or between one unit of the same delivery and another, such differences shall not render the Goods defective or give the Buyer any right against WBS.
10.1.5 Subject to clause 10.1.6, if:
(a) the Buyer gives notice in writing to WBS during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranties set out in clause 10.1.2
(b) WBS is given a reasonable opportunity of examining such Goods; and
(c) the Buyer (if asked to do so by WBS) returns such Goods to WBS’ place of business at WBS’ cost,
(d) WBS shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
10.1.6 WBS shall not be liable for Goods’ failure to comply with the warranty set out in clause 10.1.2 in any of the following events:
(a) the Buyer makes any further use of such Goods after giving notice in accordance with clause 10.1.5;
(b) the defect arises because the Buyer failed to comply with clause (c) or follow WBS’ 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 WBS following any drawing, design or Specification supplied by the Buyer;
(d) the Buyer alters or repairs such Goods without the written consent of WBS;
(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 their description OR the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
10.1.7 Except as provided in this clause 10.1, WBS shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 10.1.2.
10.2 Defective Goods
10.2.1 The Buyer shall have no claim against WBS and the Buyer shall have no right to reject Goods on the grounds of:
(a) Alleged shortage or damage in transit. Unless the Buyer notifies WBS and the carrier (if any) in writing upon delivery (TIME IS OF THE ESSENCE) by endorsing details of such shortage or damage on the POD to be returned via the carrier or handed to WBS (where WBS is represented or present at the Delivery Location at the relevant time) and confirmed in writing to WBS within 3 hours: no claims will be entertained and WBS has no liability in respect of alleged damage or shortage. The name and address of the carrier (if any) may be obtained from WBS. WBS is NOT liable for short delivery where the discrepancy does not exceed 5% of the quantity of items of the particular type referred to in the Buyer’s order.
(b) Alleged defective condition (breach of the warranty at 10.1.2(c) or (d) unless the Buyer notifies WBS in writing of such within a reasonable period and as soon as practicable after the alleged defect is identified allowing WBS to investigate.
10.2.2 WBS shall (if defects are alleged) have the right to inspect and take samples for analysis of the Goods and from any original or subsequent container to the extent that the same exists. The analysis findings shall be notified to the Buyer within twenty-one (21) days of publication to WBS and the results of such analysis shall be final and binding on the parties.
10.2.3 Goods which the Buyer alleges are defective shall not be used without the written consent of WBS nor form the subject of any claim in respect of:
(a) Work done by the Buyer incorporating such Goods, or:
(b) For any loss, damage or expense whatsoever arising directly or indirectly from such use.
10.3 Liability
10.3.1 The liability of WBS to the Buyer:
(a) is limited to the reasonable cost of replacement in the cheapest market or the price payable by the Buyer for the relevant Goods (whichever is the lower) or:
(b) excludes consequential loss, damage or expense however arising.
(c) For the content, accuracy or completeness of a catalogue or a specification of goods produced by WBS’s supplier is excluded;
(d) Is excluded in the event that a catalogue or a specification of goods produced by WBS’s supplier might infringe the Intellectual Property rights of a third party
10.3.2 Nothing in these conditions shall exclude or restrict the liability of WBS for death or personal injury resulting from its proven negligence.
10.3.3 Complaints by the Buyer in respect of Goods alleged to be defective shall not permit or provide grounds for the Buyer to delay or withhold payment due to WBS and shall not give any right of set-off against payment due from the Buyer to WBS.
Notices
Notices given to either party must be delivered by hand or sent by pre-paid first-class post addressed to:
11.1 WBS at its principal place of business;
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11.2 The Buyer at its registered office or to any address at which the Buyer resides or carries on business and are deemed served on delivery if by hand or three (3) days after posting whichever shall first occur.
Law
12.1 These conditions shall be read and construed in accordance with and are governed by English Law. Contracts incorporating these conditions are in all respects subject to the exclusive jurisdiction of the English Courts.
Data Protection
13.1 By applying for credit terms with WBS, you agree that any personal data you provide can be passed to our credit insurer, credit reference agencies and information providers, insurance companies, intermediaries and agents and they may keep a record of it and pass it to their customers. The personal data will be used for credit risk assessment and insurance and other related purposes and we may also receive personal data from sources other than you. WBS undertakes to keep any such data secure and for only as long as is necessary.