TERMS AND CONDITIONS OF SALE
1. DEFINITIONSIn these conditions:
1.1 “The Company” means Multitex GRP LLP T/A Wessex Building Products and WBP.
1.2 “The Customer” means the company, firm or person who agrees to buy (and/or hire) the goods from the Company.
1.3 “The Goods” means the goods which the Company is to supply in accordance with these conditions. Any reference to “the Goods” shall, where appropriate include a reference to part of them.
1.4“ Contract” means the contract for the supply of Good and/or Services made by Us with you incorporating our Terms and Conditions
1.5 “The Price” means the purchase price as stated in the company’s quotation.
1.6 “The Delivery Point” means the location for delivery of the Goods specified in the Company’s quotation or order confirmation.
1.7 “Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
1.8 “Services” means any work and/or services to be performed by Us in relation to the Supplies pursuant to a Contract;
1.9 “Supplies” means any products or goods supplied by or on behalf of You in respect of which Services are to be (or have been) performed by Us;
1.10 “Working Day” means Monday – Friday except for any day that is a statutory bank holiday in England;
1.11 “ We”, “Us”, “Our” means Multitex GRP LLP Trading as Wessex Building Products, Company no:OC311991 registered in England and Wales for and on behalf of itself and any of its Group Companies;
2. INTRODUCTIONThese conditions apply to all contracts for the sale of Goods by the Company. By placing an order with the company, the Customer agrees to the following conditions to the exclusion of all other terms, conditions, warranties or representations.
3. THE CONTRACT3.1 All orders are accepted by Us only under these Terms which may not be altered except with the written agreement of an Authorised Officer. Any contrary or additional terms unless so agreed are excluded such that the Contract shall constitute the entire agreement between the parties, and You shall not be entitled to rely on any statement, promise or representation made or given by or on Our behalf which is not set out in the Contract.
3.2 Your acceptance of delivery of the Goods shall (without prejudice to Condition 3.4 or any other manner in which acceptance of these Terms may be evidenced) constitute unqualified acceptance of these Terms.
3.3 Quotations do not constitute an offer and shall lapse on expiry of the stated period or, if none, 20 Working Days from the date of the quotation. We reserve the right to withdraw or revise a quotation at any time before accepting any order.
3.4 Where Goods are offered to You ex-stock Our ability to supply You is subject to such Goods being unsold upon receipt of a written order from You. Our acceptance of any order shall be effective and become a Contract only where Our standard order acknowledgement has been sent by Us.
3.5 We shall not be liable for any representation made by Us to You as to the condition of the Goods, their fitness for purpose, their physical characteristics, properties or tolerances or as to the quantity, dimensions, measurements, weights or specification unless the representation is made or confirmed in writing by an Authorised Officer, it was reasonable in the circumstances for you to have relied upon it to your detriment and/or is fraudulent.
3.6 Without prejudice to Condition 3.5 while We take every precaution in the preparation of Our catalogues, technical circulars, price details and other literature including electronic information, these documents and data are for Your general guidance only and statements made and illustrations contained therein (in the absence of fraud on Our part) shall not form part of the Contract nor 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 in writing and any advice made or confirmed in writing by an Authorised Officer in response to such a request shall amount to a representation.
3.7 Any claim for damages under Conditions 3.5 and/or 3.6 is subject to Condition 9.
3.8 Our sales are not a sale by sample, and no warranty or representation is given that Goods delivered will match in all material respects any samples or photographs submitted or sample panels constructed, as samples are drawn from bulk and are representative of the whole.
3.9 You shall be responsible to Us for ensuring the accuracy and completeness of any order including quantities, any delivery dates and applicable design, drawing dimensions, measurements, weights and structural calculations or specifications provided by You and for giving Us any necessary information relating to the Goods or Services within a sufficient time to enable Us to perform the Contract in accordance with its Terms. If You fail to notify Us in respect of any error within forty-eight (48) hours of receipt of the order specification, We accept no responsibility for any losses or delays incurred by You. We may make changes to the specification of the Goods or Services necessary to conform to any applicable statutory, regulatory or EU requirements or where Goods or Services are supplied to Our specifications, which do not materially affect their quality or performance.
3.10 The Contract or any part of it may be extended, delayed or cancelled only with the written agreement of an Authorised Officer. If an order is extended, delayed or cancelled by You whether or not with Our agreement (and without prejudice to any other rights We may have) You will indemnify Us and keep us indemnified against all losses, damages, costs and expenses We incur as a result of the extension, delay or cancellation including the cost of any material, plant or tools used or allocated to the Contract, the cost of storage, the cost of labour and other overheads including a percentage of anticipated profit on the Contract and We reserve the right to resell the Goods without notice to You.
3.11 We reserve the right at any time to correct any clerical, typographical or other similar errors in any tender, invoice, quotation, order acknowledgement or statement or other document issued by Us from time to time.
3.12 All of these Terms shall apply to the supply of both Goods and Services except where application to one or the other is specified.
4. PRICES4.1 Any quotation given by the Company is valid for 20 days only unless otherwise stated therein.
4.2 Unless otherwise stated in the Company’s quotation, the price of the Goods does not include:
a) Packaging and delivery, which shall be charged in addition at the Company’s prevailing rates at the time of acceptance of order.
b) The provision of a test certificate (if required).
4.3 The price of the Goods is exclusive of VAT or any other customs duty or sales tax which may be added as required by rules or regulations currently in force, which shall be paid in addition at the rate prevailing on the date of the VAT invoice.
4.4 The company reserves the right to make an additional charge in respect of preparation of working drawings or designs which are necessary for processing the customer's order or are required by the customer including but not limited to drawings for use by the customer in connection with other associated building works or trades.
5. MATERIALS5.1 All orders are accepted by the Company, subject to materials and components being available to the Company from its suppliers and by accepting an order the Company does not give a warranty as to availability.
5.2 The Company reserves the right to vary the agreed specification of materials used if, in its opinion, the finished product will be of an equivalent or higher standard.
6.PAYMENT6.1 Except in the case of customers with a pre-agreed credit facility the Goods shall be paid for in full before commencement of the works by the Company and/or before delivery.
6.2 The Company may in its sole discretion agree with a customer a credit facility; this would be subject to the submission and satisfactory completion of an application form and acceptable credit checks being carried out, following which the Company shall confirm in writing to the Customer the credit facility that the Company is prepared to offer. The facility will become effective subject to the Customer counter signing and dating the facility offer and returning this to the Company and is conditional to acceptance of the Company’s terms and conditions of trade herein.
6.2.1 The Company will manufacture and supply Goods of an invoice value up to the limit of the agreed credit.
6.2.2 The Company will invoice the Customer upon delivery of the Goods and the invoice will be payable in 30 days from the date of invoice unless a contrary agreement is made in writing by the Company.
6.3 If the Customer fails to pay by the agreed date the Company may: -
6.3.1 Charge interest on overdue invoices in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
6.3.2 Withhold manufacture or supply of any Goods due to the Customer.
6.3.3 Appropriate any payment made by the Customer, to such of the Goods (including Goods supplied under any other contract with the Customer) as the Company in its sole discretion think fit.
6.3.4 Withdraw credit facilities and require immediate payment in respect to all other Goods delivered to the Customer notwithstanding any other payment terms that may have previously applied.
6.4 The Customer may not withhold payment of any invoice or other amount due to the Company by reason of any right of set-off or counterclaim for any reason whatsoever.
6.5 In addition to any right of lien to which the Company may by law be entitled, the Company shall be entitled to a general lien on all Goods of the Customer in the Company’s possession (even if such Goods or some of them may have been paid for) for the unpaid price of the Goods.
6.6 The Company shall have the right of set-off for amounts owed to the Customer against amounts owed by the Customer.
7. DELIVERY7.1 Unless otherwise agreed by us, delivery of the Goods shall be ex-works. If Goods or Supplies are collected, delivery shall be completed when loading is completed at Our premises or at any other location that may be advised by Us prior to delivery. If we deliver the Goods or Supplies, delivery will occur on arrival at the delivery address which shall be the location set out in the order or such other location as agreed in writing.
7.2 Delivery dates are estimates only. Time for delivery of Goods or Supplies, or performance of the Services shall not be of the essence of the Contract. When We indicate an anticipated delivery or performance date before an order is placed it is based on the workload and availability of materials, labour and equipment at that particular time. This can change by the time an order is placed. We will use reasonable endeavours to deliver Goods and Supplies and perform Services upon the times and dates given, but we will neither be liable to you or any third party for any losses or additional costs incurred by you which results from any delay in delivery of Goods or Supplies, or in performance of Services. Nor will We accept cancellation of the order through late delivery or late performance once work on your order has commenced.
7.3 We reserve the right to make delivery of Goods or Supplies or perform Services by instalments and tender a separate invoice payable in accordance with Condition 5 in respect of each instalment. Any claim which you have in respect of one instalment shall not affect your liability in respect of any other instalment. Any default or breach by Us in respect of any instalment shall not entitle you to cancel any other instalment or to treat the Contract as a whole to have been repudiated.
7.4 We shall deliver the Goods or Supplies as near as possible to the delivery address as safe hard road permits. We reserve the right to refuse to deliver the Goods or Supplies to sites considered at the discretion of the haulier to be unsuitable. In which case Condition 6.5 will apply.
7.5 If you fail to take or make arrangements to accept delivery of the Goods or Supplies or if We are unable to deliver because of inadequate access, conditions or instructions. We shall invoice you for the Goods or Supplies and such invoice will be payable in accordance with Condition 5. If you do not then collect the Goods or Supplies or make arrangements to accept delivery (at your additional expense) within (20) Working Days from the date of invoices (for which We require payment in any event) We may, at our discretion, resell the Goods or Supplies to another customer or destroy or dispose of the Goods or Supplies in any way whatsoever.
7.6 Where the Goods or Supplies are to be collected from Our premises You must collect such Goods or Supplies within twenty (20) Working Days of being notified of their availability for collection. If You fail to collect the Goods or Supplies within this time period We shall invoice You for the Goods Supplies and Services and such invoice shall be payable in accordance with Condition 5. If you do not then collect the Goods or Supplies within twenty (20) Working Days from the date of the invoice (for which We require payment in any event), We may resell the Goods or Supplies to another customer or destroy or dispose of the Goods or Supplies in any way whatsoever and shall invoice You for storage rent.
7.7 Unless otherwise agreed in writing the unloading of Goods or Supplies is Your responsibility. If We are required to assist or provide unloading facilities or equipment an extra charge will be made.
7.8 If Goods or Supplies are to be deposited other than on Your private premises You shall be responsible for notifying Us of all relevant laws, regulations, site rules and other information necessary for Us to make the delivery and shall ensure that the place of delivery is adequate and appropriate for such delivery. If you fail to notify Us in accordance with this Condition 6.8 You will indemnify Us and keep us indemnified in respect of all claims, losses, damages, costs and expenses We incur as a result of such failure.
7.9 You will indemnify Us in respect of all claims, losses, damages costs and expenses incurred as a result of loading, unloading or delivery of Goods and or Supplies in accordance with Your instructions. This indemnity will be reduced in proportion to the extent that such claims, losses, damages, costs and expenses are due to Our negligence.
8. INSPECTION8.1 You shall inspect the Goods or Supplies at the place and time of loading (if collected by You) or unloading (if delivered by Us) but nothing in these Terms shall require You to break packaging and/or unpack Goods or Supplies which are intended to be stored before use (such inspection hereinafter referred to as ‘Reasonable Inspection’).
8.2 Unless You advise Us immediately on collection or by endorsing the haulier’s receipt note on delivery and written notice is received by Us within two (2) Working Days of loading or unloading (as appropriate) of any claim apparent on Reasonable Inspection for loss or damage in transit, short delivery or failure to conform to the Contract, the Goods or Supplies will be deemed to have been delivered in accordance with the delivery documents and You shall not be entitled to reject the Goods or Supplies.
8.3 Our liability for loss or damage in transit or short delivery in respect of any order apparent on Reasonable Inspection is, subject to notification by You to Us in accordance with the provisions of Condition 8.2, limited to supplying the Goods or Supplies ordered. You remain liable to pay the full invoice price of all Goods or Supplies delivered in accordance with the Contract. Any claim for damages is subject to Condition 10.
8.4 Where We create Goods or provide Services which are not to a standard design of Ours at Your request whether or not to a specification, drawing, design, measurement or calculation provided by You (which shall include Specials), We shall seek Your approval of the final design before full production. Once the Order is approved by You, You shall thereafter be responsible for and shall promptly reimburse Us for any additional costs We incur as a result of the implementation of any variations to such specification, drawing, design, measurement or calculation, as the case may be.
9. TITLE AND RISKOwnership of the Goods or any part thereof shall not pass from the Company to the Customer until all Goods have been paid for by the Customer to the Company in full as detailed within the Company’s invoice(s)
9.2 Risk in the Goods shall pass to You when the Goods are delivered.
9.3 The title to Goods supplied by Us (whether separate and identifiable or incorporated in or mixed with other Goods) shall remain with Us until You have paid the agreed price of the Goods (together with any accrued interest at the rate specified in Condition 6.3) and paid any other sums outstanding between You and Us whether in respect of this Contract or any other agreement with Us. For the avoidance of doubt Conditions 8.1
9.3.1 You shall hold the Goods as Our fiduciary agent and bailee;
9.3.2 the Goods shall be stored separately from any other Goods and shall remain readily identifiable as Ours and You shall not interfere with any identification marks, labels, batch numbers or serial numbers on the Goods;
9.3.3 You will notify Your customer that We remain the legal owners of the Goods until the title passes in accordance with Condition 7.2 and We reserve the right to label the Goods accordingly;
9.3.4 We agree that You may use or agree to sell the Goods as principal and not as Our agents in the ordinary course of Your business subject to the entire proceeds of any sale or insurance proceeds received in respect of the Goods being held in trust for Us and not mixed with any other monies or paid into any overdrawn bank account and shall at all times be identifiable as Our money;
9.3.5 You will at Our request and at Your expense assign to Us all rights You may have against Your customer in such Goods.
9.4 At any time before title to the Goods passes to You (whether or not any payment to You is then overdue or You are otherwise in breach of any obligation to Us), We may (without prejudice to any other of Our rights)
: 9.4.1 retake possession of all or any part of the Goods and enter any premises for that purpose (or authorise others to do so on our behalf) which You hereby authorise (and in respect of any third party premises, you shall procure such authorisation as is required for Us to exercise this right);
9.4.2 require delivery up to Us of all or any part of the Goods.
9.5 Any property of Yours in Our possession or under Our control and all property supplied to Us by or on behalf of You (including Supplies) is held by Us at Your risk.
9.6 From the time of delivery until title in the Goods passes to You in accordance with Condition 8.2, You shall store the Goods in reasonable and appropriate conditions so as to maintain the quality of the Goods and You shall insure the Goods for their full value with a reputable insurer and, if We so request, ensure that Our name is noted on the insurance policy. Until title in the Goods passes to You, You shall hold the proceeds of any claim on such insurance policy on trust for Us and shall immediately account to Us with the proceeds.
10. LIABILITYIf the Goods or any part thereof are defective solely because of faulty workmanship or materials of the Company. Liability shall be limited at the Company’s discretion. This to either replacement of the Goods or the defective part(s) thereof (as the case may be). Or to giving the Customer a credit to the value thereof, but no such liability shall arise unless notification of any defect is received by the Company within 10 days in writing and the reported allegedly defective Goods are thereafter returned to the Company.
11. PERFORMANCE CONTRACTEach delivery shall be considered a separate transaction and the failure of any one delivery shall not affect the due performance of the contract as regards other deliveries.
12. INDEMNITYThe Customer shall indemnify the Company against all claims in respect of any loss, injury or damage sustained by a third party arising from the sale of the Goods to the Customer however caused and against all actions, proceedings, costs, claims, demands and expenses brought or claimed against the Company in respect of the infringement of any patent, registered design, trademark or similar right arising from the manufacture or supply of any Goods or the carrying out of any work or the use of any article or material by the Company to the design or specification upon the instructions of the Customer.
13. STORAGEWhere the Company has notified the Customer that the Goods are ready for delivery the Customer shall take delivery or arrange for storage. If the Customer does not take delivery or arrange for storage of the goods in accordance with order delivery date(s) the Company shall be entitled to invoice the Customer and be paid for the Goods as though the Goods had been duly delivered in accordance with the order instructions and the Company may arrange storage at the Company’s own premises or elsewhere on the Customer’s behalf and all charges for storage, insurance and demurrage shall be payable by the Customer.
14. FORCE MAJEURE14.1 If in the performance of the contract, the Company will not be liable for non-performance, delay or for any loss or damage to the Goods due to Act of God, war, riot, embargo, labour dispute, civil dispute, civil commotion, fire, theft, shortage of labour or materials, confiscation, delays in delivery or services of manufacturers, suppliers and sub-contractors. Prohibition of import, or export or any other unforeseen event (whether or not similar in nature to those specified) outside of the Company’s reasonable control.
14.2 If the performance of the contract by the Company shall be prevented by any such circumstances beyond the control of the Company, then the Company shall have the right to be discharged from further performance of and liability under the contract. If the Company exercises such right, the Customer shall thereupon pay the contract price less a reasonable allowance for what has not been performed by the Company.
15. CANCELLATION OF ORDER15.1 The Customer with the Company’s consent which shall not be unreasonably withheld may cancel any order for Goods held in stock by the Company at the date of the order and by a minimum of 48 hours written notice, provided that the Customer shall pay a cancellation charge equivalent to 20% of the order price of the Goods and reimburse the Company all costs incurred by the Company to any third party in relation to that order.
15.2 An order for nonstandard Goods other than those held in stock by the Company at the date of the Customers order may not be cancelled once an order has been accepted by the Company.
15.3. Each delivery of Goods shall be considered as a separate order for the purpose of this clause.
16. NON DEFECTIVE GOODSThe return of non-defective Goods may only be considered by the Company provided that all of the following conditions are met:
16.1. The Goods are standard Goods normally held in stock by the Company.
16.2 The Goods have been purchased from the Company and proof of such purchase can be provided to the Company.
16.3 The Goods are in a re-saleable condition.
16.4 The Customer agrees to pay a restocking charge equivalent to 40% of the order price of the Goods.
16.5 The Customer agrees to return the Goods to the Company at the Customers own expense.
16.6 Nonstandard Goods may not be returned to the Company under any circumstances.
17. DEFECTIVE GOODS17.1 If the Customer notifies the Company in writing within 28 days of delivery of the Goods that they are defective and returns the allegedly defective Goods to the Company at the Customers own expense and risk. The Company will at the Company’s option replace or repair without charge the defective Goods or any defective component part of such Goods or credit the Customer the price of such Goods.
17.2 The Company will not be liable hereunder in any way if, when the Goods which the Customer alleges are defective are tested or examined by the Company the alleged defect appears to have been caused by the Customer’s misuse, neglect, improper installation, or any cause beyond the range of the intended use of the product or by accident, fire or other hazards.
17.3 Unless otherwise provided in this agreement and except in respect to death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer by reason of any representation, or any implied warranty, condition, or another term of the contract, for any indirect special or consequential loss or damage, (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, it’s employees or agents or otherwise) which arise out of or in connection with the supply of Goods or the provision of services or their use by the Customer. The entire liability of the Company shall not exceed the contract price.
18. ACKNOWLEDGEMENT OF ORDERThe Company shall be under no obligation to acknowledge receipt of an order from the Customer and shall be entitled to execute the order without further reference to the Customer.
19. INTELLECTUAL PROPERTY RIGHTS19.1 All Intellectual Property Rights in or arising out of or in connection with the Goods or Services shall be owned by Us.
19.2 You acknowledge that in respect of any third party Intellectual Property Rights in the Goods and Services, Your use of any such Intellectual Property Rights is conditional on Our obtaining a written licence from the relevant licensor on such terms as will entitle Us to license such rights to You.
19.3 We retain copyright in all Our drawings, sketches, plans, prints and other documents or data. No reproduction thereof shall be made without Our written permission and neither the drawings nor reproductions thereof shall be transferred to any third party without Our written permission.
19.4 No trademark or name carried on the Goods may be erased or replaced without Our consent.
19.5 All of Our materials, equipment, documents and other property are Our exclusive property.
20. PROPER LAWThe contract shall be governed by English Law and the exclusive jurisdiction of the English Courts.
21. INSOLVENCYIf the Customer: 21.1 Being a Company
21.1.1. Has a petition presented for its winding up
21.1.2 Passes a resolution for voluntary winding up (other than for the purpose of a bona fide amalgamation or reconstruction): or
21.1.3 Enters into a voluntary arrangement with its creditors; or
21.1.4 Becomes subject to an administration order; or
21.1.5 Has a receiver appointed of all or any assets; or
21.2 Being an individual or firm:
21.2.1 Becomes bankrupt or insolvent; or
21.2.2 Enters into a voluntary arrangement with creditors. Then the Company shall be entitled to treat the contract as being at an end or suspend any further deliveries under the contract. If the Goods have been delivered but not paid for, the price shall become immediately payable regardless of any previous agreement to the contrary