Sale Terms 01/01/05
In these Sale Terms the following meanings shall apply:
"We" and "Us" means Build & Plumb Materials Online and its employees and agents and "Our" shall be interpreted accordingly.
"You" means the person their employees or agents seeking to purchase the Goods from Us and "Your" shall be interpreted accordingly.
"the Goods" means the Goods or where the context permits the services to be supplied by Us.
"the Defect" means the condition and/or any attribute of the Goods and/or any other circumstances which but for the effect of these Terms would have entitled You to damages.
"the Terms" means the Terms set out in this document and any special Terms agreed in writing between Us and You.
"the Contract" means the Contract for the supply of goods incorporating these terms.
"in writing" includes facsimile, electronic mail and comparable means of communication and "written" shall be interpreted accordingly.
2 The Contract
2.1 All orders are accepted by Us only under these Terms and acceptance is at Our sole discretion. These Terms may not be altered other than with Our written agreement. Any contrary or additional Terms unless so agreed are excluded.
2.2 Quotations are invitations to treat only and unless otherwise specified shall lapse 30 days after their date. All quotations are subject to withdrawal or amendment without notice.
2.3 Orders may be cancelled only with Our written agreement and You will indemnify Us against all costs claims losses or expenses incurred as a result of that cancellation.
2.4 You shall be responsible to Us for ensuring the accuracy of the Terms of any order including any applicable design drawing or specification provided to Us by You and for giving Us any necessary information relating to the Goods within a sufficient time to enable Us to perform the Contract in accordance with its Terms.
2.5 We shall not be liable in respect of any misrepresentation made by Us to You as to the condition of the Goods or their fitness for any purpose or as to quantity or measurements unless the representation is:
(a) made or confirmed in writing by Us; and/or
2.6 Without prejudice to Clause 2.5 of these Terms while We take every precaution in the preparation of Our catalogues technical circulars price lists and other literature these documents are for Your general guidance only and statements made therein (in the absence of fraud on Our part) shall not constitute representations by Us and We shall not be bound by them. If You require advice in relation to the Goods a specific request for advice should be made and any advice made or confirmed in writing in response to such a request shall amount to a representation and We shall be liable accordingly.
2.7 Goods are offered subject to being unsold upon receipt of Your order.
2.8 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of order or other document issued by Us, shall be subject to correction without liability on Our part.
3.1 Our quotations and prices are based on costs prevailing at the time when they are given or agreed. We shall be entitled to adjust the price of the Goods as at the time of delivery by such amount as may be necessary to cover any increase sustained by Us after the date of acceptance of Your order and any direct or indirect costs of making obtaining handling or supplying the Goods.
3.2 Prices quoted are applicable to the quantity specification delivery dates and information provided by You. If the order placed varies or delay is caused by Your instructions or lack of instructions We shall be entitled to adjust the price.
3.3 The prices are exclusive of VAT which shall be due at the rate ruling on the date of a VAT invoice.
3.4 Prices quoted normally include delivery within Our geographical operating area details of which are available on request. Any additional carriage or offloading charges are separately shown on the quotation.
4.1 Unless the sale is for cash or other credit terms have been agreed in writing all accounts are due for payment on or before the last working day of the month following the month in which the Goods are delivered.
4.2 In the event of non-payment in accordance with Clause 4.1 of these Terms the outstanding balance of Your account immediately becomes due and We reserve the right to withhold deliveries and cancel outstanding orders without liability on Our part.
4.3 We shall be entitled at all times to set off any debt or claim of whatever nature which We may have against You against any sums due from Us to You.
4.4 In the event of Your payment to Us not being met by Your bank on first presentation We reserve the right to charge You £20.
5.1 Delivery will be effected when Goods leave Our premises or the premises of Our supplier where the Goods are delivered direct from the suppliers to You.
5.2 Delivery dates are given in good faith but are estimates only. Late delivery does not affect Your duty to pay Us.
5.3 Time and date of delivery shall not be of the essence of the Contract.
5.4 We shall not be liable for any damages whatsoever whether direct or indirect (including for the avoidance of doubt any liability to any third party) resulting from any delay in delivery of the Goods or failure to deliver the Goods in a reasonable time.
5.5 If We fail to deliver the Goods Our entire liability shall be limited to the excess (if any) over the price of the Goods, of the cost to You (purchasing in the cheapest market reasonably available to You) of similar goods to replace those not delivered.
5.6 We reserve the right to make delivery by installments and tender a separate invoice in respect of each installment. Any claim which You may have in respect of one installment shall not affect Your liability in respect of any other installment.
5.7 You must provide the necessary labour for unloading the Goods and unloading is to be completed with reasonable speed. If Our delivery vehicle is kept waiting for an unreasonable time or is obliged to return without completing the delivery or if We provide extra staff to unload Goods or if for any reason You fail to accept delivery of the Goods an additional charge may be made.
5.8 We shall deliver the Goods as near as possible to the delivery address as a safe hard road permits. We reserve the right to refuse to deliver the Goods to premises considered in the discretion of Our driver to be unsuitable.
5.9 If Goods are deposited other than on Your private premises You shall be responsible for compliance with all regulations and for all steps which need to be taken for the protection at all time of persons or property and will indemnify Us in respect of all cost claims losses or expenses We may incur as a result of such delivery whether on the public highway or elsewhere.
5.10 Where a copy delivery document or proof of delivery is requested more than seven days after the date of the invoice a documentation charge of £10 excluding VAT will be made to cover administration costs.
6.1 You shall inspect and sign for the Goods at the place and time of unloading.
6.2 You must give Us written notice within 48 hours of unloading of any claim for short delivery, breakage or that the Goods do not conform to the Contract.
6.3 In the case of Goods delivered by a third party carrier breakages and short deliveries must be notified to the carrier within 48 hours or such shorter time as they may specify in addition to notifying Us.
6.4 If You do not give Us written notice within that time the Goods will be deemed to have been delivered in accordance with the Contract and in the quantities shown on the delivery documents and You waive any right to reject the Goods or claim any damages whatsoever for short delivery or breakage.
6.5 Our liability for short delivery is limited to making good the shortage.
7.1 Goods supplied ex stock will be accepted back only by prior agreement and with proof of purchase and a charge of 25% of the Price of the Goods will be made by Us.
7.2 Goods supplied to special order from suppliers or cut to size cannot be returned.
7.3 All Goods returned must be in good clean re-saleable condition in original packaging otherwise such Goods will not be accepted.
7.4 Pallets bags and packaging materials are chargeable unless returned.
7.5 Arrangements for the return of Goods must be made with Us and Goods will be collected from Your premises only when a collection/returns note has been raised by Us.
8 Title and Risk
8.1 Risk in the Goods shall pass to You when the Goods are delivered.
8.2 The title to the Goods shall remain with Us until You pay all sums due to Us whether in respect of this Contract or otherwise.
8.3 Until title passes:
8.3.1 You shall hold the Goods as Our fiduciary agent and bailee
8.3.2 the Goods shall be stored separately from any other goods
8.3.3 You may use or sell the Goods as principal and not as Our agents in the ordinary course of Your business subject to the following express conditions
(a) that the entire proceeds of any sale in respect of the Goods are held in trust for Us and shall at all times be identifiable as Our money;
(b) that Your right to use or sell the Good may be withdrawn by Us on notice at any time and will automatically cease if You become Insolvent.
8.4 We shall be entitled to recover the price of the Goods including VAT even though the property in any of the Goods remains with Us.
8.5 We shall be entitled at any time to recover any or all of the Goods in Your possession to which We have title and for that purpose We Our servants or agents may with such transport as is necessary enter upon any premises occupied by You or to which You have access and where the Goods may be or are believed to be situated.
8.6 Should any of the Goods be converted into or made part of other Goods (including immovable property) We shall have the same right of equitable and beneficial ownership in such other goods or property as We had in the Goods themselves prior to such conversion until all indebtedness to Us from You has been discharged.
9.1 Nothing in these Terms shall exclude or restrict Our liability for death or personal injury resulting from Our negligence or Our liability for fraudulent misrepresentation.
9.2 We accept no responsibility for direct indirect or consequential loss or damage of any nature whatsoever.
9.3 If You deal as a Consumer as defined by the Unfair Contracts Act 1977 or the Unfair Terms in Consumer Contracts Regulations 1994 ("a Consumer") any provision of these Terms which is of no effect shall not apply. The statutory rights of a Consumer are not affected by these Terms.
9.4 Subject to Clause 9.1 of these Terms We shall not be liable by reason of any misrepresentation (unless fraudulent) or any breach of warranty condition or other term express or implied or any breach of duty (common law or statutory) or negligence for any damages whatsoever. Instead of liability in damages We undertake liability under Clause 9.5 below.
9.5 Where but for the effect of Clause 9.4 of these Terms You would have been entitled to damages against Us We shall not be liable to pay damages but subject to the conditions set out in Clause 9.6 below shall in Our sole discretion either repair the Goods at Our own expense or supply replacement Goods free of charge or refund all (or where appropriate part) of the price of the relevant Goods.
9.6 We will not be liable under Clause 9.5:
(a) if the Defect would have been apparent on a reasonable inspection under Clause 6.1 of these Terms at the time of unloading unless You give Us written notice within seven working days of the time of unloading;
(b) unless the Defect is discovered within one month from the date of delivery and We are given written notice of the Defect within seven working days of it being discovered;
(c) if the Defect arises from fair wear and tear.
(d) if the Defect arises from Your wilful damage negligence abnormal working conditions mis-use alteration or repair of the Goods failure to follow British Standard or industry instructions relevant to the Goods or storage of the Goods in unsuitable conditions (but this sub-clause shall not apply to any act or omission on Our part); or
(e) unless after discovery of the Defect We are given a reasonable opportunity to inspect the Goods before they are used or in any way interfered with. For avoidance of doubt We acknowledge that the costs of suspending works are relevant to the determination of what is a reasonable opportunity and this sub-clause shall not apply to any works affecting the Goods which it may be reasonably necessary to carry out in the interests of safety and / or as emergency measures.
9.7 If goods are not manufactured by Us or have been processed or milled by a third party whether or not at Our or Your request Our liability in respect of any defect in workmanship or materials of the Goods will be limited to such rights against the manufacturer or the third party as We have in respect of those Goods. We will on written request provide details of Our rights against the manufacturer or third party and any other terms and conditions imposed by the manufacturer or the third party and so far as possible will on request assign to You any such rights.
9.8 If the Goods are manufactured processed or milled by Us to the design quantity measurement or specification of You or Your agents then:
9.8.1 Subject to Clause 9.1 and 9.3 of the Terms We shall not be under any liability for damages whatsoever or under Clause 9.5 of the Terms as the case may be except in the event of:
(a) fraudulent misrepresentation;
(b) misrepresentation where the representation was made or confirmed in writing;
(c) non-compliance with such design quantity measurement or specification; or
(d) breach of a written warranty by Us that the Goods are fit for that purpose.
9.8.2 You will unconditionally fully and effectively indemnify Us against all loss damages costs on an indemnity basis and expenses awarded against or incurred by Us in settlement of any claim:
(a) for infringement of any patents copyright design trademark or any other industrial or intellectual property rights of any other person; and/or
(b) arising from any such manufacturing processing or milling including but not limited to any Defect in the Goods.
9.9 You will unconditionally fully and effectively indemnify Us against all losses damages costs on an indemnity basis and expenses awarded against or incurred by Us is connection with or paid or agreed to be paid by Us in settlement of any claim by any third party arising from the supply or use of the Goods including loss arising from Our negligence.
9.10 Without prejudice to any other provision in these Terms in any event Our total liability for any one claim or for the total of all claims arising from any one act or default on Our part (whether arising from Our negligence or otherwise) shall not exceed a sum equivalent to the purchase price of the Goods the subject matter of any claim.
10 Non Payment/insolvency
10.1 "Insolvent" means You ceasing to pay Your debts in the ordinary course of business or being unable to pay your debts as they become due or Your ceasing or threatening to cease to carry on Your business.
10.2 If You fail to pay any invoice or any sum due to Us under any Contract by the due date or You become Insolvent or there is a material change in Your constitution or You commit a material breach of this Contract and fail to remedy that breach all sums outstanding between You and Us shall become immediately due and payable and We shall be entitled to do any one or more of the following (without prejudice to any other right or remedy We may have):
10.2.1 require cleared funds in advance of further deliveries;
10.2.2 cancel or suspend any further deliveries to You under this or any other Contract without liability on Our part;
10.2.3 charge interest on the balance of the monies outstanding at the rate of 5% above HSBC Bank plc base rate in force from time to time from the date the payment became due until the date actual payment is made.
11 Data Protection
11.1 If You are an individual or group of individuals You agree that We may:
11.1.1 Seek hold and process any information obtained about You as a result of applications You have made to Us for credit and/or in connection with this or any other contractor agreement You may have with Us.
11.1.2 Use this information for credit assessment purposes and to administer and operate the credit account granted to You and to monitor and analyse the conduct of that account and to assess your credit limit.
11.2 We will not disclose any information We hold about You except to licensed credit reference agencies, other suppliers and creditors to help Us and others make credit decisions, to help prevent fraud or other crimes and to trace debtors, on a confidential basis to Our agents and subcontractors, to insurance companies for purposes connected with insurance products that relate or might relate to your credit account, to any other person to whom We propose to transfer Our rights and/or responsibilities under this Contract and to the extent We are required or permitted to do so by law.
12 Measurement size and specification
12.1 Materials cut to size including but not limited to timber plywood chipboard glass and laminates may be subject to a cutting charge and a larger stock size from which the cut piece was made will be chargeable.
12.2 We may supply any of the Goods in either imperial or metric dimensions and to a near equivalent dimension.
12.3 Timber is a natural product hence we do not give any guarantee against shrinkage movement or warping of timber or timber based products.
12.4 We reserve the right to change the specification of the Goods to conform with any applicable statutory or EC requirements or where the change does not materially affect their quality or performance.
13 Product Suitability
13.1 Unless specifically stated on our Order Acknowledgement/your order, Panel Products supplied are not listed in BS5268 Part 2 as being suitable for load bearing applications.
14.1 This contract shall be governed and interpreted exclusively according to English Law and You agree to submit to the non exclusive jurisdiction of the English Courts.
14.2 We shall not be liable for any breach of contract delay or failure to perform any of Our obligations if the breach delay or failure was due to any cause beyond Our reasonable control including industrial action.
14.3 The waiver by Us of any breach or default of these Terms shall not be construed as a continued waiver of that breach nor as a waiver of any subsequent breach of the same or any other provision.
14.4 If any Clause or sub-Clause of these Terms is held by a competent authority to be invalid or unenforceable the validity of the other Clauses and sub-Clauses of these Terms shall not be affected and they shall remain in full force and effect.
14.5 If the Housing Grants, Construction and Regeneration Act 1996 Part II applies to this Contract the Scheme under that Act shall apply and take precedence in the event of conflict between the Scheme and these Terms.
14.6 Any reference in these Terms to any Statute, Statutory Provision or Regulation includes a reference to it as amended extended or re-enacted at the relevant time.
14.7 The headings of these Terms are for convenience only and shall not affect their interpretation.
14.8 Termination of this Contract shall not affect rights which have already accrued at the time of termination.
14.9 Nothing in the Terms or the Contract is intended to or will create any benefit for or right to enforce any of the Terms of the Contract to any third party.
14.10 Relevant health and safety information on the Goods is available from Us on request.
14.11 We may vary all or any of the Terms by giving You seven days written notice.
Should you want to contact us at any time, you can do so by e-mail at firstname.lastname@example.org, by phone on 01228 635022 or by post to the address below:
FAO Build and Plumb Materials Online
J T Dove Ltd
St Nicholas Bridge