These terms and conditions govern the sale of all products (“Products”) and services (“Services”) provided by WALLBARN LTD (“the Seller”). The terms and conditions apply notwithstanding any conflicting, contrary or additional terms and conditions in any Purchase Order (“Purchase Order”) or other document or communication from the Buyer. The Buyer is the person (whether a natural person, corporate or unincorporated body (whether or not having separate legal personality)) placing any order to purchase any Products and/or Services provided by the Seller. These terms and conditions may only be waived or modified in a written agreement signed by an authorised representative of the Seller. Neither the Seller’s acknowledgment of a Purchase Order nor the Seller’s failure to object to conflicting, contrary or additional terms and conditions in a Purchase Order shall be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof.
1. ORDERS. All Purchase Orders received are subject to acceptance by the Seller. All orders must be communicated to the Seller by way of an official Purchase Order. Orders for standard products, if cancelled by the Buyer may be subject to a cancellation fee or restocking charge at the sole discretion of the Seller. Orders for special, non-standard or custom products shall be non-cancellable and non refundable.
2. PRICES. Prices shall be as specified by the Seller and shall be applicable for the period specified in the Seller’s quote. If no period is specified, prices shall be applicable for thirty (30) days from the date of the Sellers quote. Notwithstanding the foregoing, prices shall be subject to increase in the event of an increase in the Seller’s costs or other circumstances beyond the Seller’s reasonable control, unless a fixed contract price is tendered or agreed in writing by the Seller prior to acceptance of an order made by the Buyer.
Prices are inclusive of import duties, insurance and shipping charges unless specified otherwise in the quotation. All quoted prices exclude VAT. For the avoidance of doubt, any quotation given by the Supplier shall not constitute an offer.
3. TERMS OF PAYMENT. Payment must be made in advance of any dispatch of Products unless a credit account has been agreed and set up by the Seller.
The Buyer agrees to submit such financial information from time to time as may be reasonably requested by the Seller for the establishment and/or continuation of credit terms.
Where the credit account is set up, payment shall be due within thirty (30) days from the date of invoice or as otherwise specified by the Seller. The Buyer agrees to pay the entire net amount of each invoice received from the Seller pursuant to the terms of each invoice without offset or deduction.
Orders are subject to credit approval by the Seller. The Seller may in its sole discretion at any time change the terms of the Buyer’s credit, require payment in cash, bank wire transfer or by official bank cheque and/or require payment of any or all amounts due or to become due for the Buyer’s order before shipment of any or all of the Products. If the Seller believes in good faith that the Buyer’s ability to make payments may be impaired or if the Buyer fails to pay any invoice when they fall due, the Seller may suspend delivery of any order or any remaining balance thereof until such payment is made, or cancel any order or any remaining balance thereof, and the Buyer shall remain liable to pay for any Products already shipped and all non-standard products ordered by the Buyer.
Cheques are accepted subject to collection and the date of collection shall be deemed the date of payment. Any payment received from the Buyer may be applied by the Seller against any obligation owing from the Buyer to the Seller, regardless of any statement appearing on or referring to such cheque, without discharging the Buyer’s liability for any additional amounts owing from the Buyer to the Seller, and the acceptance by the Seller of such payment shall not constitute a waiver of the Seller’s right to pursue the collection of any remaining balance. The Buyer shall pay interest on any invoice not paid when due from the due date for payment to the date of payment at the rate of one and one-half (1-1/2%) percent above the Bank of England base rate per month or such lower rate as may be the maximum allowed by law. If the Buyer fails to make payment when it becomes due, the Seller may pursue any legal or equitable remedies, in which event the Seller shall be entitled to reimbursement for costs of collection and reasonable legal fees.
4. DELIVERY AND TITLE. The Seller retains title to Products until the Seller has received full payment from the Buyer.
Any additional transportation charges, duties and other costs will be stated on the invoice and shall be paid by the Buyer in addition to the price of Products. The Buyer irrevocably agrees that the Seller or Seller’s agents can enter the Buyer’s premises to remove goods and Products for which the Buyer is in payment default. Demand for the return or recovery of goods and Products shall not discharge the Buyer’s liability to pay the whole of the invoice or the right of the Seller to sue for the whole invoice amount plus legal costs and expenses.
Risk of loss passes to the Buyer upon delivery of the Products to the Buyer. The Seller shall make selection of the carrier (“Carrier”) and delivery route. The Seller shall use reasonable efforts to initiate shipment and schedule delivery as close as possible to the Buyer’s requested delivery dates. The Buyer acknowledges that delivery dates provided by the Seller are estimates only and that the Seller is not liable for failure to deliver on such dates. The Seller reserves the right to make deliveries in installments to the Buyer. Delivery of a quantity that varies from the quantity specified shall not relieve the Buyer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment shall not entitle the Buyer to cancel other installments. If delivery or shipment of Products is delayed or refused due to unreasonable, negligent or reckless action by the Buyer then the Buyer will be liable for the costs of that delivery or shipment in full and the costs of return to the Seller in full.
Delivery of the Products shall be completed when they are signed for by an individual at the delivery address (regardless of whether or not the person signing is the same person who submitted the Purchase Order).
If the Buyer requires a particular person to sign for the Products then they must expressly draw this to the attention of the Seller at the time of submitting their Purchase Order.
5. ACCEPTANCE OF PRODUCTS AND PRODUCT RETURNS. Inspection and acceptance of the Products shall be the Buyer’s responsibility. The Buyer is deemed to have accepted the Products unless written notice of rejection is received by the Seller within five (5) days after delivery of the Products. The Buyer waives any right to revoke acceptance thereafter. The Buyer shall report any discrepancy in shipment quantity or damage within five (5) days after delivery. The Buyer accepts that the Seller is not responsible for damage due to the Seller’s non compliance with special handling or inspection warnings on packages. In the event the Buyer receives damaged packages, the Buyer may reject the package back to the Carrier and inform the Seller as soon as is practicable. If the Buyer accepts the package the Buyer must advise the Carrier and the Seller in writing no later than 3 days after receipt that the package was damaged upon receipt and the contents were unexamined at the time of receipt. The Buyer should retain all packing materials and containers for examination by the Seller’s insurers and provide a damage assessment report in writing to the Seller within (5) days. Returned Products must be in original manufacturer’s shipping cartons complete with all packing materials. If returned Products are claimed to be defective, a complete description of the nature of the defect must be included with the returned Products. Products not eligible for return shall be returned back to the Buyer at the Buyer’s expense
6. FORCE MAJEURE. The Seller shall not be liable for failure to fulfill its obligations herein or for delays in delivery due to causes beyond its reasonable control, including, but not limited to, acts of God, natural disasters, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, adverse weather conditions (including ash clouds), epidemics, quarantine restrictions, riots, war, acts of terrorism, delays in transportation or inability to obtain labour or materials through its regular sources. The Seller’s time for performance of any such obligation shall be extended for the time period of such delay or the Seller may, at its option, cancel any order or remaining part thereof without liability by giving notice of such cancellation to the Buyer.
7. SELLER’S LIMITED WARRANTY. The Seller warrants to the Buyer that upon delivery to the Buyer the Products purchased hereunder shall conform to the applicable manufacturer’s specifications for such Products. The Seller makes no other warranty, express or implied, with respect to the Products to the Buyer. IN PARTICULAR, THE SELLER MAKES NO WARRANTY IN RESPECT OFTHE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR RESPECTING INFRINGEMENT. THE SELLER DOES NOT MAKE ANY WARRANTY OR GUARANTEE RELATING TO PERFORMANCE, REACTION OR COMPATIBILITY OF ANY PART OF THE PRODUCT TO OTHER PRODUCTS AND MATERIALS WITH WHICH IT MAY COME INTO CONTACT.
With respect to Products which do not meet the applicable manufacturer’s specifications, the Seller’s liability is limited, at the Seller’s election, to (1) refund of the Buyer’s purchase price for such Products (without interest), (2) repair of such Products, or (3) replacement of such Products; provided, however, that such Products must be returned to the Seller, within the manufacturer’s warranty period, transportation charges prepaid. The Seller shall transfer to the Buyer whatever transferable warranties and indemnities the Seller receives from the manufacturer of the Products.
8. LIMITATION OF LIABILITIES.
NOTHING IN THESE CONDITIONS SHALL LIMIT OR EXCLUDE THE SELLER’S LIABILITY FOR:
- DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS (AS APPLICABLE);
- FRAUD OR FRAUDULENT MISREPRESENTATION;
- BREACH OF THE TERMS IMPLIED BY SECTION 12 OF THE SALE OF GOODS ACT 1979;
- DEFECTIVE PRODUCTS UNDER THE CONSUMER PROTECTION ACT 1987;
- BREACH OF THE TERMS IMPLIED BY SECTION 2 OF THE SUPPLY OF GOODS AND SERVICES ACT 1982 (TITLE AND QUIET POSSESSION);
- ANY MATTER IN RESPECT OF WHICH IT WOULD BE UNLAWFUL FOR THE SELLER TO EXCLUDE OR RESTRICT LIABILITY.
SUBJECT TO THE PROVISIONS OF THIS CLAUSE 8:
- THE SELLER SHALL UNDER NO CIRCUMSTANCES WHATEVER BE LIABLE TO THE BUYER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, FOR ANY LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS ARISING UNDER OR IN CONNECTION WITH THESE TERMS AND CONDITIONS (AND/OR ANY ADDITIONAL TERMS RELATING TO THE PROVISION OF SERVICES UNDER CLAUSE 11) EVEN IF THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
- THE SELLER’S TOTAL LIABILITY TO THE BUYER IN RESPECT OF ALL OTHER LOSSES ARISING UNDER OR IN CONNECTION WITH THESE TERMS AND CONDITIONS (AND/OR ANY ADDITIONAL TERMS RELATING TO THE PROVISION OF SERVICES UNDER CLAUSE 11), WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, WARRANTY OR OTHERWISE, SHALL IN NO CIRCUMSTANCES EXCEED THE PRICE OF THE PRODUCTS.
THE SELLER SHALL NOT BE LIABLE FOR AND THE BUYER SHALL INDEMNIFY, DEFEND AND HOLD THE SELLER HARMLESS FROM ANY CLAIMS BASED ON THE SELLER’S COMPLIANCE WITH THE BUYER’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN THE SELLER, OR USE IN COMBINATION WITH OTHER PRODUCTS.
9. USE OF PRODUCTS IN LIFE SUPPORT, NUCLEAR AND CERTAIN OTHER APPLICATIONS.
Products sold by the Seller are not designed, intended or authorised for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If the Buyer uses or sells the Products for use in any such applications: (1) The Buyer acknowledges that such use or sale is at the Buyer’s sole risk; (2) The Buyer agrees that the Seller and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) the Buyer agrees to indemnify, defend and hold the Seller and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
10. EXPORT CONTROL. The sale, resale or other disposition of certain Products and related technologies or documentation may be subject to the export control laws, regulations and orders of the United Kingdom and may also be subject to the export and/or import control laws and regulations of other countries. The Buyer agrees to comply with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. The Buyer acknowledges its responsibility to obtain any license to export, re-export or import as may be required.
11. PROVISION OF SERVICES The Supplier shall provide the Services to the Buyer in accordance with a service specification that shall be agreed between the parties. Where there is any conflict between these terms and conditions and any additional terms agreed between the parties as part of the service specification, the additional terms shall prevail.
The Supplier shall use all reasonable endeavours to meet any performance dates for the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Buyer in any such event.
The Supplier warrants to the Buyer that the Services will be provided using reasonable care and skill.
The Buyer shall:
- co-operate with the Supplier in all matters relating to the Services;
- provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Buyer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
- provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
- obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
- keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Buyer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation (Buyer Default):
- the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations to the extent the Buyer Default prevents or delays the Supplier’s performance of any of its obligations;
- the Supplier shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 11; and
- the Buyer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Buyer Default.
12. STATEMENTS AND ADVICE. If statements or advice, technical or otherwise, are offered or given to the Buyer, such statements or advice shall be deemed to be given as an accommodation to the Buyer and without charge and the Seller shall have no responsibility or liability for the content or use of such statements or advice.
13. INTELLECTUAL PROPERTY. If an order includes software or other intellectual property, such software or other intellectual property is provided by the Seller to the Buyer subject to the copyright and user license, the terms and conditions of which are set forth in the license agreement accompanying such software or other intellectual property. Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement.
14. GENERAL. As used herein, terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular. No rights, duties, agreements or obligations hereunder may be assigned or transferred by either party, by operation of law, merger or otherwise, without the prior written consent of the other. Any attempted or purported assignment shall be void. Notwithstanding the foregoing, the Seller’s obligations under these Terms and Conditions may be performed by divisions, subsidiaries or affiliates of the Seller. The obligations, rights, terms and conditions hereof shall be binding on the parties hereto and their respective successors and assigns. The waiver of any provision hereof or of any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction. The English Courts shall have exclusive jurisdiction. These Terms and Conditions shall be governed by and construed in accordance with the laws of England excluding any law or principle, which would apply the law of any other jurisdiction. The United Nations Convention for the International Sale of Goods shall not apply.