Terms & Conditions of Sale

Terms & Conditions of Sale

1. Interpretation

1.1 In these Conditions:

“SELLER” means V.A. Whitley & Company Limited whose registered office is situated at Milward House, Fir Street, Heywood, Lancs. OL10 1NW.

“BUYER” means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.

“GOODS” means the Goods (including any instalment of the Goods or any parts of them) which the Seller is to supply in accordance with these Conditions.

“CONDITIONS” means the standard terms and conditions of sale set out in this document and includes any special terms and conditions agreed in writing between the Buyer and the Seller.

“CONTRACT” means any contract between the Seller and Buyer for the sale and purchase of the Goods, incorporating the Conditions.

“WRITING or WRITTEN” includes cable, facsimile transmission, email and comparable means of communication.

2. Basis of the sale

2.1 Each order or acceptance of a quotation for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.

2.2 The Buyer shall order the Goods by telephone or by placing an order on the Seller’s website (www.vawhitley.co.uk) and the Buyer understands that if an order is accepted by the Seller (either orally or by website confirmation) a Contract is formed and the Buyer is legally bound to purchase the Goods.

2.3 The Conditions shall govern the Contract to the exclusion of all other terms and conditions (including any terms and conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document) subject to any variation under condition 2.4.

2.4 No variation to these Conditions shall be binding unless agreed in Writing by the authorized representatives of both the Buyer and the Seller.

2.5 The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in this condition shall exclude or limit the Seller’s liability for fraudulent misrepresentation.

3. Orders and specifications

3.1 No order shall be deemed to have been accepted until such acceptance is confirmed by the Seller in accordance with condition 2.2.

3.2 The Buyer shall ensure that the terms of its order and any applicable specification (including quantity, quality and description of the Goods) are complete and accurate.

3.3 All samples, drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures or on its website are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample. Any typographical clerical or other omission in any information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

3.4 The Buyer may not cancel an order which has been accepted by the Seller except with the Written agreement of the Seller and the Buyer shall indemnify the Seller in full against all reasonable loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation.

4. Price of the goods

4.1 Unless otherwise agreed by the Seller in Writing, the price for the Goods shall be the price set out in the Seller’s price list published on the date of delivery or deemed delivery.

4.2 The Seller reserves the right, by giving reasonable notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller, (such as, without limitation, any increase in the costs of labour, materials or other associated costs of manufacture), any change in delivery dates, quantities or specifications of the Goods which is requested by the Buyer, or any delay caused by the failure of the Buyer to give the Seller adequate information or instructions

4.3 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.

5. Terms of payment

5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller the Buyer shall pay cash for the price of the Goods upon delivery by the Seller or, in the case of online orders, upon placing the order, and receipts for payments shall be issued upon request.

5.2 If special terms are agreed between the Buyer and the Seller other than cash on delivery then the due date(s) for payment shall be the date(s) agreed between the Buyer and the Seller. All payments payable to the Seller under the Contract shall become due immediately on its termination despite any other provision.

5.3 If the Buyer fails to make full payment on delivery or on the due date(s) then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:

(a) take the Goods back or refuse delivery of the Goods;

(b) terminate the Contract or suspend any further deliveries to the Buyer;

(c) charge the Buyer interest on the amount unpaid, at the rate of 4 per cent per annum above Barclays Bank plc base rate as calculated on a daily basis until payment in full is made; and

(d) charge a reasonable administrative fee (being not less then £10.00) in respect of any returned or represented cheques.

6. Delivery

6.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the Buyer’s premises, or, if some other place for delivery is agreed by the parties, by the Seller delivering the Goods to that place.

6.2 Goods ordered by telephone will usually be delivered on the day of order. Any times quoted for delivery are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. The Buyer shall not be entitled to terminate the Contract if the Goods are not delivered on the day of order.

6.3 Where the Goods are to be delivered in instalments, each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.

6.4 If the Seller fails to deliver the Goods (for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault) the Seller shall use its reasonable endeavours to deliver the Goods on the next available delivery date or earlier at the Buyer’s request (upon the Buyer agreeing to pay the additional delivery costs), and the Buyer shall remain liable to the Seller to pay the price of the Goods.

6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions (otherwise than by reason any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then the Goods shall be deemed to have been delivered and the Buyer shall be liable to pay the price of the Goods together with any additional expenses incurred by the Seller as a result of the failed delivery.

7. Risk and property

7.1 The Goods are at the risk of the Buyer from the time of delivery.

7.2 Ownership of the goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of:

(a) the Goods; and

(b) all other sums which are or which become due to the Seller from the Buyer on any account.

7.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:

(a) hold the Goods on a fiduciary basis as the Seller’s bailee;

(b) store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property;

(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and

(d) maintain the Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller.

On reasonable request the Buyer shall produce the policy of insurance to the Seller.

7.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:

(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and

(b) any such sale shall be a sale of the Seller’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.

7.5 The Buyer’s right to possession of the Goods shall terminate immediately if:

(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the windingup 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; or

(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or

(c) the Buyer encumbers or in any way charges any of the Goods.

7.6 The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.

7.7 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.

7.8 Where the Seller is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.

7.9 On termination of the Contract, howsoever caused, the Seller’s (but not the Buyer’s) rights contained in this condition 7 shall remain in effect.

8. Warranties and liability

8.1 Where the Seller is not the manufacturer of the Goods, the Seller shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller but shall have no further liability to the Buyer in respect of any defects in the Goods.

8.2 The Seller warrants that (subject to the other provisions of these Conditions) on delivery the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.

8.3 The Seller shall not be liable for a breach of any of the warranties in this condition 8 unless:

(a) the Buyer gives Written notice of the defect to the Seller, and, if the defect is as a result of damage in transit, within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and

(b) the Seller is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Seller’s cost for the examination to take place there.

8.4 The Seller shall not be liable for a breach of any of the warranties in this condition 8 if:

(a) the Buyer makes any further use of such Goods after giving notice as set out in condition 8.3; or

(b) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, use or maintenance of the Goods or (if there are none) good trade practice; or

(c) the Buyer alters or repairs such Goods without the Written consent of the Seller.

8.5 Subject to condition 8.3 and condition 8.4, if any of the Goods do not conform with the warranty in condition 8.2 the Seller shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Seller so requests, the Buyer shall, at the Seller’s expense, return the Goods or the part of such Goods which is defective to the Seller.

8.6 If the Seller complies with condition 8.5 it shall have no further liability for a breach of the warranty in respect of such Goods.

8.7 Subject to condition 6 and this condition 8, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:

(a) any breach of these Conditions;

(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and

(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

8.8 All warranties, conditions and other items implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

8.9 Nothing in these conditions excludes or limits the liability of the Seller:

(a) for death or personal injury caused by the Seller’s negligence; or

(b) for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or

(c) for fraud or fraudulent misrepresentation.

8.10 Subject to condition 8.8 and condition 8.9:

(a) the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and

(b) the Seller shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

9. Force Majeure

9.1 The Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Seller including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of sixty days, the Buyer shall be entitled to give notice in Writing to the Seller to terminate the Contract.

10. General

10.1 Failure or delay by the Seller in enforcing or partially enforcing any provisions of the Contract shall not be construed as a waiver of any of its rights under the Contract.

10.2 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the contract.

10.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall remain in full force and effect.

10.4 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.

10.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

10.6 The Contract shall be governed by the laws of England and shall be governed by the exclusive jurisdiction of the English courts.