Terms and Conditions for Goods
1 Definitions and interpretation
"Contract" means the contract for the supply of Goods formed by the Supplier's acceptance (which, however made or communicated, shall be deemed made subject to these Conditions);
"Customer" means the person, company or other body placing an Order with the Supplier;
"Goods" means the goods as set out in the Order;
"Intellectual Property" means all patents, rights to inventions, copyright and related rights, trade marks, trade names, copyright, rights in designs and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
"Order" means the order placed by the Customer for the supply of Goods;
"Specification" means the specification in relation to the Goods as detailed in the Order;
"Supplier" means Edward Marsden Ltd of Precision House, Ring Road, Seacroft, Leeds LS14 1NH registered in England and Wales with Company No. 1071350;
"Supplier’s Proposal" means the rates quoted to the Customer by the Supplier, prior to the Customer’s Order; and
"Use by Date" means the date 12 months from the date on which the Goods are delivered in accordance with the terms of condition 9 below, unless the Supplier notifies the Customer otherwise in writing.
2 Supply of the Goods
2.1 The Contract shall be deemed to have been entered into upon receipt of the Supplier’s written order acknowledgement or when the Supplier delivers the Goods whichever is the earlier. All Goods sold are sold subject to these Conditions and these Conditions shall be the sole terms and conditions applicable. Terms and Conditions on the Customer’s order form or other similar document shall not be binding on the Supplier and the placing of the Order by the Customer shall indicate unqualified acceptance of these Conditions.
2.2 No representative, agent or other person has the Supplier’s authority to vary, amend or waive any of these Conditions on behalf of the Supplier and no amendment or addition to any of these Conditions shall be deemed to have been accepted unless accepted in writing by the Supplier.
3 Rates and payment
3.1 Rates for the Goods are the rates as set out in the Supplier’s Proposal and are exclusive of VAT.
3.2 Time of payment shall be of the essence of the Contract
3.3 Payment by the Customer to the Supplier shall be made within agreed terms stated on the Supplier's invoice unless otherwise agreed by the Supplier in writing.
3.4 (a) Without prejudice to any other rights or remedy that it may have, if the Customer fails to pay the Supplier on the due date the Supplier may charge interest on any amounts overdue at the rate of 4% per annum above the base rate of the HSBC Bank Plc as applying from time to time to run from the due date for payment until receipt by the Supplier of the full amount whether or not after judgment and without prejudice to any other right or remedy of the Supplier; and/or
(b) suspend delivery of any Goods.
3.5 No payment shall be deemed to have been received until the Supplier has received cleared funds.
3.6 All payments payable to the Supplier under the Contract shall become due immediately on its termination despite any other provision.
3.7 The Customer shall make all payments due under the Contract in full without any deduction whether by set-off, counterclaim, discount, abatement or otherwise.
4 Duration of Supplier’s Proposal
4.1 The Supplier’s Proposal will be valid for 30 days.
5 Intellectual Property Rights
5.1 The Customer acknowledges that any and all Intellectual Property in and relating to the Goods, the Supplier and / or the Supplier’s business belong solely to the Supplier and shall remain entirely in the ownership of the Supplier. Nothing said or done by either party shall constitute the transfer of any such rights.
6.1 The quantity and description of the Goods shall be as set out in the Supplier’s Proposal.
6.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures 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.
7 Supplier's obligations
7.1 The Supplier warrants that the Goods will materially meet the Specification where the Goods are stored in accordance with condition 8 below.
7.2 The Supplier does not warrant or give any guarantees that the Goods will be fit for purpose and it shall be for the Customer to determine that the Goods are fit for the Customer’s purpose prior to placing an Order.
7.3 In the event that the Goods do not comply with the warranty given in the above condition 7.1 the Supplier shall at its option replace such Goods (or the defective part) or refund the price of such Goods provided that, if the Supplier so requests, the Customer shall, at the Supplier’s expense, return the Goods to the Supplier.
8 Use and Storage of the Goods
8.1 The Customer warrants and undertakes:
(a) To at all times store the Goods at a temperature not below 0 degrees Celsius and not above 30 degrees Celcius; and
(b) to not use the Goods after the Use by Date.
9.1 Unless otherwise agreed in writing by the Supplier the Customer shall collect the Goods from the Suppliers place of business.
9.2 Delivery of the Goods shall occur 5 days after notification to the Customer that the Goods are ready for collection or upon receipt of a signature received at the time of and place for delivery, whichever occurs first. For the avoidance of doubt, it shall be the Customer’s responsibility to ensure that any person who signs at the point of delivery is an authorised signatory of the Customer.
9.3 Any dates specified by the Supplier for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
9.4 If for any reason the Customer fails to accept delivery of any of the Goods or the Supplier is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Customer (including for loss or damage caused by the Supplier's negligence) at the point the Supplier was ready to deliver the Goods;
(b) the Goods shall be deemed to have been delivered; and
(c) the Supplier may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
9.5 The Supplier may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
9.6 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
10.1 The quantity of any consignment of Goods as recorded by the Supplier upon despatch from the Supplier's place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
10.2 From the date of physical delivery of the Goods to the Customer, the Customer shall have a maximum of 3 (three) days to check the condition of the Goods.
10.3 The Supplier shall not be liable for any non-delivery or insufficient quality of the Goods (“Non-Delivery”) (even if caused by the Supplier's negligence) unless the Customer gives written notice to the Supplier of the Non-Delivery within 3 days of the date when the Goods were or where applicable, would in the ordinary course of events have been received.
10.4 Any liability of the Supplier for Non-Delivery of the Goods shall be limited to replacing the Goods within a reasonable time or refunding the fee paid for such Goods.
11 Risk / Title
11.1 Risk in the Goods shall pass at the point of delivery in accordance with condition 9.
11.2 Ownership of the Goods shall not pass to the Customer until the Supplier has received in payment of all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Supplier from the Customer under this or any other contract.
11.3 Until ownership of the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier's bailee;
(b) store the Goods in such a way that they remain readily identifiable as the Supplier's property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain such Goods in satisfactory condition and insure the Goods and keep them insured on the Supplier's behalf for their full price against all risks with an insurer that is reasonably acceptable to the Supplier and upon request from the Supplier, to provide written evidence of such; and
(e) hold all proceeds from sale of the Goods in a designated account (of which the Customer shall provide the Supplier with details) until ownership has passed to the Customer in accordance with Condition 11.2
11.4 The Customer grants the Supplier, 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 Customer's right to possession has terminated, to recover them.
12 Change Control Procedure
12.1 In the event that the Customer wishes to make any changes to any aspect of an Order or the Contract, including but not limited to the volume or description of Goods it must notify the Supplier of such changes in writing ("Change Request").
12.2 On receipt of a Change Request the Supplier will, within 14 days, notify the Customer in writing as to whether it accepts the Change Request and if it is willing to accept the Change Request will notify the Customer of the increase or decrease of the cost and the relevant changes that need to be made to the Contract. The Supplier is under no obligation to accept any changes.
13.1 This condition 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of any breach of the Contract; any use made by the Customer of the Goods; any use made or resale by the Customer of any Goods, or of any product incorporating any of the Goods; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
13.2 Nothing in these Conditions limits or excludes the liability of the Supplier for death or personal injury resulting from the Supplier’s negligence; or for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier.
13.3 Except as set out in this Agreement all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
13.4 Subject to condition 13.2
(a) the Supplier fully excludes all liability where the Customer does not use and store the Goods in strict accordance with condition 8;
(b) the Supplier shall bear no responsibility and fully excludes all liabilities in respect of how the Customer uses the Goods;
(c) the Supplier shall not be liable for loss of profits; or loss of business; or depletion of goodwill and/or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss of corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
(d) the Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise shall be limited to the price paid or payable for the Goods.
14.1 The Customer shall at all times keep secret and confidential all Intellectual Property and technical or commercial know-how, specifications, inventions, processes, initiatives, business and trade secrets, methods of doing business, customer lists and all other information of a confidential nature which have been disclosed to the Customer or the Customers agent by the Supplier, its employees, agents or sub-contractors and any other confidential information concerning the Supplier's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer's obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
14.2 The above 14.1 shall not apply to confidential information which:
(a) is in the public domain or is already lawfully known to the Customer at the time of disclosure; or
(b) subsequently comes lawfully into the possession of the Customer from a third party; or
(c) subsequently enters the public domain otherwise than as a result of unauthorised disclosure by the Supplier or any other person.
14.3 This condition 14 shall survive termination of the Contract, however arising.
15.1 Either of the Customer or the Supplier may (without prejudice to any other rights) forthwith terminate the Contract by written notice to the other:
(a) if the other commits a material breach of any provision of the Contract which is not capable of remedy;
(b) if the other commits a material breach of any provision of the Contract and fails to remedy such breach within 30 days of receipt of a notice from the innocent party specifying the breach; or
(c) if the other party becomes bankrupt insolvent compounds with its creditors or shall have distress or execution levied upon its property or is wound up or goes into liquidation (except for the purposes of a bona fide reconstruction) or shall have a receiver administrative receiver or administrator appointed of the whole or any part of its assets or shall suffer the appointment of any similar person under the laws of its domicile.
15.2 The exercise of the rights granted under condition 15.1 shall not prejudice or affect any right of action or remedy which may have already accrued or may accrue thereafter to either Party.
16 General provisions
16.1 All payments to be made under the terms of the Contract are exclusive of any VAT (or any tax of a similar nature) which shall be payable on the production of a valid VAT invoice therefore in addition to any such payments.
16.2 Each provision of the Contract is severable and distinct from the others and if any provision is or at any time becomes to any extent or in any circumstances invalid, illegal or unenforceable for any reason, it shall to that extent or in those circumstances be deemed not to form part of the Contract, but the validity, legality and enforceability of all other provisions of the Contract shall not otherwise be affected or impaired, it being the Parties' intention that every provision of the Contract shall be and remain valid and enforceable to the fullest extent permitted by law.
16.3 The Supplier shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing any of its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, act of terrorism, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
16.4 No variation of the Contract shall be effective unless it is in writing, refers specifically to the Contract and is executed by a duly authorised representative of each party.
16.5 Failure or delay of a party to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of that right or any other right, nor operate to bar exercise or enforcement of it or any other right at any time or times thereafter.
16.6 Each party warrants to the other that:
(a) This Agreement constitutes the entire agreement and understanding between the parties and supersedes any previous agreement between them relating to the matters contained in this Agreement (which shall be deemed to have been terminated by mutual consent);
(b) in entering into this Agreement, it does not rely on any statement, representation, assurance, promise or warranty of any person (whether a party to this agreement or not) other than as expressly set out in this Agreement. Neither party excludes its liability for fraudulent misrepresentation.
16.7 The Customer shall not prior to the Supplier’s written consent, assign, transfer or sub-contract the Contract or any of its rights, benefits or obligations under it to any other person, firm or supplier.
16.8 A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of the Contract.
16.9 The Contract shall be governed by and construed in accordance with English law and the courts of England and Wales shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Contract.
Precision House, Ring Rd, Seacroft, Leeds LS14 1NH