CRAVEN DUNNILL & CO LIMITED (“THE COMPANY”)
TERMS AND CONDITIONS OF SALE (“CONDITIONS”)
1. Terms of the Contract
1.1 Unless other terms and conditions are expressly accepted by the Company by means of a specific written amendment hereto signed by an authorised representative of the Company the contract between the buyer (“the Buyer”) and the Company (“the Company”) will be subject to these Conditions to the exclusion of any other terms and conditions (except those implied in favor of a seller which are not inconsistent with the Conditions) whether or not such other terms and conditions are endorsed upon, delivered with or referred to in any purchase order or other document delivered or sent by the Buyer to the Company. Any reference overleaf to the Buyer’s order, specification or like document will not be deemed to imply that any terms or conditions endorsed upon, delivered with or referred to in such order, specification or like document will have effect to the exclusion or amendment of the Conditions.
1.2 The Contract is also subject to the terms and conditions issued by the manufacturer of the goods to be supplied under the Contract (“the Goods” which expression includes any of them or any part of them) and such terms and conditions are available to the Buyer on request from the Company.
1.3 1.3.1 Any quotation is given on the basis that no contract will come into existence until the Company dispatches an acknowledgment of order to the Buyer.
1.3.2 Any quotation is valid for a period of 30 days only from its date provided that the Company has not previously withdrawn it.
2. Delivery
2.1 The Company will endeavour to deliver the Goods within the time agreed and if no time is agreed within a reasonable time, but time of delivery shall not be of the essence of the Contract and in no circumstances will the Company be liable for loss or damage of any kind whatsoever caused directly or indirectly by any delay in the delivery of the Goods.
2.2 The Company may make delivery of the Goods by instalments.
2.3 The method of delivery of the Goods will be determined in accordance with Condition 2.4 and the price for the Goods (“the Price”) is calculated on that basis.
2.5 Where delivery of the Goods is to be made by the Company in bulk, unloading of the delivered Goods shall be the responsibility of the Buyer, who shall unload the Goods with all reasonable speed immediately after delivery of the Goods.
2.6 2.6.1 No claim for damage, shortages or non-delivery will be considered unless the Company is advised in writing within 7 days of delivery of the Goods. In the
absence of such advice the Buyer will be deemed to have accepted the Goods. Any claim for damage, shortages or non-delivery shall also be notified to any carriers by the Buyer in the manner and within the appropriate time limit prescribed by such carriers’ terms and conditions.
2.6.2 A delivery note signed by the Buyer shall be conclusive evidence that delivery has been made to the order of the Buyer.
2.7 In the event of failure by the Buyer to give the appropriate notice or notices as specified in Condition 2.6, the Buyer’s claim will be deemed to have been waived and will be absolutely barred and (without prejudice to any of the other Conditions) in no event shall the Buyer be entitled to reject the Goods on the basis of any defect or failure which is so slight that it would be unreasonable for the Buyer to reject them.
2.8 2.8.1 Subject to Condition 2.8.3 Goods are not supplied on sale or return, and unless expressly stated overleaf will not be accepted back or exchanged by the Company.
2.8.2 Goods specially purchased by the Company for sale to the Buyer at the request of the Buyer cannot be accepted back or exchanged by the Company in any circumstances.
2.8.3 The Company may (in its absolute discretion and without prejudice to Condition 2.8.1) accept the return of Goods sold to the Buyer by the Company from the Company’s existing stock of Goods, provided such returned Goods are returned in good condition, in full cartons and properly packaged to the satisfaction of the Company within 30 days of their delivery by the Company from the Company’s factory or warehouse, and on payment by the Buyer to the Company of a restocking charge being 20% of the Price of the Goods returned (subject to a minimum restocking charge of £10).
2.9 The Company will endeavour to supply the exact quantity of Goods ordered but in the event that to fulfil an order necessitates the use or opening of a further carton of Goods which it would then be uneconomic for the Company to dispose of elsewhere may supply more than the exact quantity ordered up to the number of Goods in such further carton. A pro rata increase to the Price will be made to cover any variation.
2.10 The Company reserves the right to make any changes in the specification of the Goods necessary to render the Goods in conformity with any health and safety or (without limitation) other statutory requirements.
3. Guarantee and Exclusion
3.1 3.1.1 The Company will endeavour to transfer to the Buyer the benefit of any warranty or guarantee given by the manufacturer of the Goods.
3.1.2 Whether or not any warranty or guarantee can be transferred to the Buyer under Condition 3.1.1 no guarantee is available from the Company and in particular (but without limitation) no tiles are guaranteed against: –
3.1.2.1 crazing or staining caused by coloured grouts;
3.1.2.2 shade variation, to which the Goods (especially the decorative effects of those Goods which are decorative wall or floor tiles) are inherently subject.
3.1.3 In respect of Goods for which the benefit of a warranty or guarantee is transferred to the Buyer, the Company will, if such guarantee or warranty so provides, free of charge, within the period specified in such warranty or guarantee, repair or at its option replace any Goods which are proved to the reasonable satisfaction of the Company to be defective in material or workmanship provided that this obligation will not in any event apply where:-
3.1.3.1 the Goods have been altered in any way whatsoever or have been subjected to misuse or unauthorised repair; or
3.1.3.2 the Buyer has failed to observe any maintenance requirements relating to the Goods; or
3.1.3.3 the Buyer is in breach of this Contract or any other contract made with the Company.
3.1.4 Any Goods replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on the terms set out in this Condition 3.1 for the unexpired portion of the manufacturer’s guarantee or warranty period.
3.2 THE COMPANY WILL BE UNDER NO LIABILITY IN CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR BREACH OF STATUTORY DUTY) ON THE PART OF THE COMPANY OR ANY OF ITS EMPLOYEES, AGENTS OR SUB-CONTRACTORS FOR ANY PERSONAL INJURY, DEATH, LOSS OR DAMAGE OF ANY KIND WHATSOEVER (OTHER THAN DEATH OR PERSONAL INJURY RESULTING FROM THE COMPANY’S NEGLIGENCE) WHETHER IN CONNECTION WITH THE MANUFACTURE, SUPPLY OR USE OF THE GOODS OR ANY STATEMENT (SAVE FOR ANY FRAUDULENT STATEMENT) GIVEN OR MADE (OR ADVICE NOT GIVEN OR MADE) BY OR ON BEHALF OF THE COMPANY OR OTHERWISE AND WHETHER CONSEQUENTIAL OR OTHERWISE INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS AND THE COMPANY HEREBY EXCLUDES ALL CONDITIONS, WARRANTIES AND STIPULATIONS EXPRESS OR IMPLIED, STATUTORY, CUSTOMARY OR OTHERWISE WHICH BUT FOR SUCH EXCLUSION WOULD OR MIGHT SUBSIST IN FAVOUR OF THE BUYER EXCEPT THAT SUCH EXCLUSION WILL NOT APPLY TO:-
3.2.1 ANY IMPLIED CONDITION THAT THE COMPANY HAS OR WILL HAVE THE RIGHT TO SELL THE GOODS WHEN THE PROPERTY IS TO PASS; OR
3.2.2 WHEN THE BUYER DEALS AS A CUSTOMER (AS DEFINED IN SECTION 12 OF THE UNFAIR CONTRACT TERMS ACT 1977), ANY IMPLIED TERM RELATING TO THE CONFORMITY OF THE GOODS WITH THEIR DESCRIPTION OR SAMPLE OR AS TO THEIR QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
3.3 3.3.1 No drawings, descriptive matter, weights or dimensions issued by the Company or the manufacturer of the Goods, nor the descriptions and illustrations contained in the Company’s or manufacturer’s catalogues, price lists or other promotional material will form part of the Contract nor be regarded as a warranty or representation relating to the Goods.
3.3.2 No employees or agents of the Company are authorised to make any representation concerning the Goods and the Buyer acknowledges that in entering into the Contract it does not rely on any representations which are not confirmed in writing by a duly authorised agent of the Company.
3.4 Where the Goods are sold to a consumer under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions.
3.5 The Buyer acknowledges that:-
3.5.1 it is the Buyer’s responsibility to check that Goods which are tiles have a blend of shade acceptable to the Buyer before such Goods are fixed;
3.5.2 without prejudice to the other provisions of these Conditions, no claim of whatsoever nature can be entertained by the Company once Goods are fixed.
4. Risk
Notwithstanding any other Condition, risk in the Goods shall pass to the Buyer when the Goods are delivered to the Buyer or its agent (which, where Condition 2.5 applies, shall be deemed to be prior to the Buyer beginning the unloading of the Goods), or at the time when the Company has tendered delivery of the Goods if the Buyer wrongly refuses to take delivery of the Goods.
5. Property in the Goods
5.1 The property (both legal and equitable) in the Goods shall not pass to the Buyer until:-
5.1.1 the purchase price of the Goods has been paid in full; and
5.1.2 payment to the Company of any sum which is at the date of the Contract or may thereafter become due or owing from the Buyer to the Company.
5.2 Until property in the Goods has passed to the Buyer or until delivery of the Goods to a third party pursuant to the permission given in Condition 5.3, the Buyer will hold the Goods in a fiduciary capacity, will not obliterate any identifying mark on the Goods or their packaging and will keep the Goods separate from any other Goods and properly insured and stored.
5.3 Prior to the property in the Goods passing to the Buyer the Company permits the Buyer to deliver the Goods to a third party pursuant to a bona fide and arms-length agreement to re-sell the Goods and allows the Buyer to convert or incorporate the Goods into or mix the Goods with other Goods but such liberty will cease upon the termination of the Contract.
5.4 Where the Company is unable to determine whether any goods are the Goods the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer and upon production by the Company of an invoice demonstrating that the Goods are in accordance with the goods on the Buyer’s property or under the Buyer’s control such goods shall be assumed to have been supplied by the Company unless the Buyer can prove otherwise.
5.5 5.5.1 The Company may at any time after payment for the Goods has become due take possession of the Goods (which for the avoidance of doubt will include the right to stop the Goods in transit) and remove them and the Buyer shall be deemed to have granted irrevocable authority to the Company to enter upon the Buyer’s premises or other premises where the Goods may be by its employees or agents to take possession of the Goods and (if necessary) to dismantle the Goods from anything to which they are attached.
5.5.2 If prior to the expiry of 7 days from the date when the Company has taken possession of the goods the Buyer pays all sums then due or owing to the Company together with the costs of re-taking possession of the Goods, the Company will re-deliver the Goods to the Buyer at the Buyer’s expense. If within the 7 day period the Buyer fails to pay all sums then due or owing to the Company, the Company may re-sell the Goods and shall pay to the Buyer the balance of any sums received upon the re-sale of the Goods after deducting all sums due or owing from the Buyer to the Company and the costs of taking possession of and re-selling the Goods save that if the sums so received by the Company do not exceed all sums due or owing from the Buyer to the Company and the costs of taking possession of and re-selling the Goods the Buyer will pay to the Company any shortfall.
5.6 The Company will have the right to maintain an action against the Buyer for the price of the Goods notwithstanding that property in the Goods has not passed.
5.7 Nothing in the Contract will constitute the Buyer the agent of the Company in respect of any re-sale of the Goods by the Buyer so as to confer upon a third party rights against the Company.
6. Price
6.1 The Price may be amended at any time by the Company without notice to the Buyer unless otherwise agreed in writing with the Buyer.
6.2 Unless expressly stated otherwise all prices are exclusive of VAT which shall be charged at the rate and in the manner prescribed by law from time to time, and is NOT subject to any discount.
7. Payment
7.1 The Price is due and payable forthwith and the Company will not release the Goods unless payment has already been made, provided that if the Company has granted in writing credit facilities to the Buyer then the provisions of Conditions 7.2 to 7.7 will apply to the grant of such credit facilities. Where credit facilities have not been granted to the Buyer, the Company may nevertheless in its absolute discretion use or enforce Conditions 7.2 to 7.7 in the Contract or in contracts with the Buyer.
7.2 7.2.1 All invoices will be dated with the date the Goods are despatched from the Company’s or (if appropriate) Company’s agents’ factory or warehouse.
7.2.2 The Company reserves the right to charge interest on all sums outstanding at the rate referred to in Condition 7.3 if payment of the Price is not received by the end of the next month following the date of the invoice.
7.2.3 Subject to Condition 7.2.5, the Price is due and payable upon delivery or when the Company tenders the Goods for delivery and payment will be made by the Buyer by the end of the month following the date of the invoice for the Goods, and the time for payment of the Price shall be of the essence of the Contract.
7.2.4 The Company reserves the right not to deliver the Goods until the Company is paid the amount shown on the invoice for the Goods if the Buyer fails to observe any of the Conditions or has in the past failed to observe any of the Conditions.
7.2.5 If the Buyer fails to comply with any of the terms of payment or any credit facilities agreed with the Company, such facilities may forthwith be withdrawn without notice to the Buyer and all outstanding sums will then be due and payable forthwith together with any applicable interest chargeable thereon.
7.3 Interest at an annual rate of 4% above National Westminster Bank Plc Base Rate from time to time will accrue daily and be calculated on a daily basis on overdue accounts from the due date for payment until payment and whether before or after any judgement.
7.4 Notwithstanding any Condition allowing the Buyer credit payment shall become due and payable to the Company immediately upon the termination of the Contract.
7.5 Where the Buyer makes default under the Contract or any other contract with the Company in payment on the due date of any sum due to the Company, the Company without liability may postpone any delivery or may cancel the Contract or any other contract between the Company and the Buyer but without prejudice to any right or remedy which the Company may have against the Buyer in respect of such default.
7.6 The Company will be entitled to payment for all instalments of Goods delivered to the Buyer.
7.7 The Company shall at any time be entitled to appropriate any payment made by the Buyer in respect of any Goods in settlement of Goods invoices or accounts in respect of such Goods as the Company may in its absolute discretion think fit notwithstanding any purported appropriation to the contrary by the Buyer.
7.8 All payments should be made to the Company’s offices in Bridgnorth.
8. Lien
The Company will (without prejudice to any other remedy available to it) have in respect of all unpaid debts due from the Buyer a general lien on all goods (whether or not the property of the Buyer) in the possession of the Company for whatever purpose and whether worked upon or not and be entitled on the expiration of not less than 14 days’ notice in writing to the Buyer to dispose of such property and to apply the proceeds towards the satisfaction of such debts.
9. Cancellation
9.1 9.1.1 If the Buyer cancels, extends or delays or purports to cancel, extend or delay the Contract or part thereof, or fails to take delivery of any Goods at the time agreed (if any) or if no time is agreed within a reasonable time, then the Buyer will be liable (without prejudice to any other rights of the Company to claim damages) to indemnify and keep indemnified the Company against any resulting loss, damage
or expense incurred by the Company in connection with the supply or non-supply of the Goods including (without limitation) the cost of any material, plant or tools used or intended to be used therefor and the cost of labour and other overheads including a percentage in respect of profit, and the costs of storage, additional insurance and double handling charges.
9.1.2 Without prejudice to the terms of Condition 9.1.1, if the Buyer cancels or purports to cancel the Contract or part thereof, the Company reserves the right to deliver Goods already despatched, ready for despatch or in the process of manufacture and the Price therefor shall remain payable by the Buyer, and the other terms of the Contract shall remain unaffected.
9.2 If the Company is unable (whether temporarily or permanently) to procure any services, goods or materials of whatsoever nature necessary to enable it to supply the Goods or if the supply or delivery of the Goods is prevented or hindered by reason of any cause beyond the Company’s reasonable control which for the avoidance of doubt and without prejudice to the generality of the foregoing shall include accidents, governmental action, war, riot, civil commotion, fire, flood, epidemic, labour disputes including labour disputes involving the work force or any part thereof of the Company, restraints or delays affecting shipping or carriers, currency restrictions and Act of God, the Company may cancel the Contract by notice in writing to the Buyer so far as it relates to Goods not then supplied or work not then done and such cancellation shall not give rise to any claims by the Buyer provided that the Buyer shall remain liable to pay for Goods delivered prior to the date of such cancellation.
10. Right of re-sale
If the Buyer defaults in accepting delivery of or paying for the Goods, the Company reserves the right to re-sell the Goods or any of them to a third party without giving notice to the Buyer of the Company’s intention to re-sell and to charge the Buyer for any shortfall below the Price.
11. Set-off
Unless otherwise agreed in writing by the Company with the Buyer the Buyer will have no right to set-off, statutory or otherwise.
12. Termination
12.1 The Contract will terminate immediately upon the happening of any one or more of the following, namely, that the Buyer has had a bankruptcy order made against him or has made an arrangement or composition with his creditors or otherwise taken the benefit of any Act for the time being in force for the relief of insolvent debtors or (being a body corporate) has had convened a meeting of creditors (whether formal or informal) or has entered into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation or has a receiver, manager, administrator or administrative receiver appointed of its undertaking or any part thereof or a resolution has been passed or a 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 have been commenced relating to the insolvency or possible insolvency of the Buyer, or that the Buyer has suffered or allowed any execution whether legal or equitable to be levied on his/its property or obtained against him/it or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer has ceased to trade or has failed to observe or perform any of its obligations or duties under the Contract or any other contract between the Company and the Buyer or the Company reasonably apprehends that any of such events is about to occur in relation to the Buyer or the Buyer dies or by reason of any illness or injury or any other cause whatsoever becomes unable for a consecutive period of 3 months to carry on business.
12.2 The Company’s rights contained in Condition 5 (but not the Buyer’s rights) shall continue beyond the discharge of the parties’ primary obligations under the Contract consequent upon its termination.
12.3 The termination of the Contract howsoever arising will be without prejudice to the rights and duties of either party accrued prior to termination.
12.4 On termination of the Contract the Buyer will return to the Company all written documents and (without limitation) other things on loan or free issue from the Company and all copies thereof which are in the Buyer’s possession, custody or control as at the date of such termination.
13. General
13.1 The Company will be entitled to assign, sub-contract or sub-let the Contract or any part thereof.
13.2 Failure by the Company to enforce any of the Conditions will not be construed as a waiver of any of its rights hereunder.
13.3 The legal construction of these Conditions shall not be affected by their headings which are for convenience of reference only.
13.4 If any provision of these Conditions is held by any competent authority to be unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
13.5 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as it may be amended, re-enacted or extended from time to time.
13.6 Any notice required or permitted to be given by the Company or the Buyer under the Contract shall be in writing addressed to the other party at (in the case of the Buyer) its last known business address and (in the case of the Company) the Company’s offices in Bridgnorth, unless the Company expressly states otherwise.
14. English Law
The formation, interpretation and operation of the Contract will be subject to English Law and the Buyer submits himself to the non-exclusive jurisdiction of the English courts