Terms & Conditions of Supply
These terms and conditions (“Terms”) govern the sale of all products detailed in an Order Confirmation (“Products”) and services (“Services”) provided by WALLBARN LIMITED company number 01500958 of Unit 16, Capital Business Centre, 22 Carlton Road, South Croydon. CR2 0BS. United Kingdom (the “Supplier”). The Terms apply notwithstanding any conflicting, contrary or additional terms and conditions in any (“Purchase Order”) or other document or communication from the Customer. The Customer is a person (whether a natural person, corporate or unincorporated body (whether or not having separate legal personality), which is contracting in a business capacity) placing any order to purchase any Products and/or Services provided by the Supplier. These Terms may only be waived or modified in a written agreement signed by an authorised representative of the Supplier. Neither the Supplier’s acknowledgment of a Purchase Order nor the Supplier’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.
A Purchase Order, PO number or request for Products is subject to acceptance by the Supplier, which shall be communicated in an order confirmation or acceptance of a PO number (“Order Confirmation”). An Order Confirmation will usually be issued (without obligation) within three days from the date on which the Customer submitted the Purchase Order, PO number or request for Products. A Purchase Order is an offer by the Customer, but shall not be binding on the Customer until Order a Confirmation is issued by the Supplier. Any quote given by the Supplier shall not constitute an offer.
The Order Confirmation and these Terms shall form a legally binding agreement between the Customer and the Supplier. These Terms supersede any terms which may be contained on a Purchase Order and all previous agreements. Should there be any conflict between any terms on a Purchase Order and these Terms, then these Terms shall prevail.
Supplier shall arrange delivery of the Products in accordance with the Order Confirmation and these Terms.
2. Delivery of the products
Supplier shall appoint a suitable carrier (“Carrier”) to deliver the Products. Delivery of the Products shall take place at the Customer’s premises or such other location as stated in the Order Confirmation (“Delivery Point”). Acceptance of any change to the Delivery Point requested by the Customer shall be at the Supplier’s sole discretion and the Customer shall be liable for any additional costs incurred by the Supplier as a result of such change. The Supplier shall arrange for suitable transport to the Delivery Point. Delivery of the Products shall be completed when they are signed for by any individual at the Delivery Point.
Delivery dates are approximate only and time is not of the essence for delivery of the Products. The Supplier may effect delivery in one or more instalments. Delay in delivery of one instalment shall not entitle the Customer to cancel other instalments. The Customer shall report any discrepancy in shipment quality or damage within five days of delivery.
The Customer accepts that the Supplier is not responsible for damage due to the Carrier’s or Customer’s non-compliance with special handling or inspection warnings on packages.
If any Products have damaged packaging at the Delivery Point, the Customer may reject the Products back to the Carrier and inform the Supplier as soon as is practicable. If the Customer accepts the package, then the Customer must advise the Carrier and the Supplier in writing no later than three days after delivery, explaining that the contents were unexamined at the time of receipt.
If the Products do not comply with the Warranty, then the Customer may, within five days of delivery at the Delivery Point give written notice of rejection to the Supplier.
In either case, the Customer shall return the relevant Products (unaltered) to the Supplier for inspection.
If the Customer fails to give such notice, then the Products shall be deemed to comply with the Warranty and the Customer shall have accepted delivery. The Supplier shall have no further liability to the Customer with respect to those Products.
If the Customer rejects any delivery of the Products which do not comply with the Warranty; and the Supplier (acting reasonably) accepts that the Products do not comply with the Warranty (which reasonable decision will be final), then the Supplier shall within 7 days of that acceptance:
supply replacement Products which comply with the Warranty; or
notify the Customer that it is unable to supply replacement Products, in which case the Supplier shall grant to the Customer a credit equal to the value of the Products which the Supplier agrees do not comply with the Warranty. This shall be the Customer’s sole remedy for breach of Warranty and/or breach of these Terms.
The Customer shall return Products in the original manufacturer’s shipping cartons complete with all packing materials, at the Customer’s expense and risk. If returned Products are claimed to be defective under the Warranty, then 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 Customer at the Customer’s expense.
3. Import and export licences
The Customer is responsible for obtaining, at its own cost, such import/export licences and other consents in relation to the Products as are required from time to time and, if required by the Supplier, the Customer shall make those licences and consents available to the Supplier prior to the relevant shipment.
The Product or Services prices shall be as specified in the Supplier’s quote, for the period specified. If no period is specified, prices shall be applicable for thirty (30) days from the date of the Supplier’s quote. Notwithstanding the foregoing, prices shall be subject to increase if there is an increase in the Supplier’s costs or other circumstances beyond the Supplier’s control. Prices are inclusive of import duties, insurance and shipping charges unless specified otherwise in the quote, but exclusive of VAT or applicable sales taxes.
5. Payment terms
Customer shall pay the Supplier prices for the Products stated in the invoice or Order Confirmation in GBP by telegraphic transfer to the bank account specified in the invoice or Order Confirmation in advance of dispatch of any Products, by credit card or by SagePay (unless a credit account has been agreed and set up by the Supplier).
To reduce the likelihood of fraud, it is advised that Customers should not accept or transfer payment using alternative bank details provided by email unless these have been verified by a subsequent telephone call to the Supplier. Customers should not trust any email from the Supplier requesting that funds be sent to a different bank account other than that set out in the Order Confirmation or invoice. The Supplier shall not be liable for any money sent to a wrong account, under any circumstances.
If the Customer is required under any applicable law to withhold or deduct any amount from the payments due to the Supplier, the Customer shall increase the sum it pays to the Supplier by the amount necessary to leave the Supplier with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
The time for payment shall be of the essence and no payment shall be deemed to have been made until the Supplier has received payment in cleared funds.
Where a credit account is set up, payment shall be due within thirty days from the date of invoice or as otherwise specified by the Supplier. All orders are subject to credit approval by the Supplier. The Supplier may, in its sole discretion, at any time, withdraw credit facilities, change the terms of the Customer’s credit and/or require payment of any or all amounts due or to become due before shipment of the Products.
The Customer agrees to submit such financial information from time to time as may be reasonably requested by the Supplier for the establishment and continuation of credit terms. If the Supplier believes in good faith that the Customer’s ability to make payments may be impaired or if the Customer fails to pay any invoice when it falls due, the Supplier may suspend delivery of any Products until such payment is made, and/or cancel any further agreed order or any remaining balance thereof, and the Customer shall remain liable to pay for any Products already shipped and all nonstandard products ordered by the Customer.
Cheques are accepted subject to collection and the date of collection shall be deemed the date of payment. Any payment received from the Customer may be applied by the Supplier against any obligation owing from the Customer to the Supplier, regardless of any statement appearing on or referring to such cheque, without discharging the Customer’s liability for any additional amounts owing from the Customer to the Supplier, and the acceptance by the Supplier of such payment shall not constitute a waiver of the Supplier’s right to pursue the collection of any remaining balance.
If the Customer fails to make any payment due to the Supplier under these Terms by the due date for payment, then, without limiting the Supplier’s remedies under these Terms, the Customer shall pay interest on the overdue amount at the rate of 1.5% above the Bank of England’s Base Rate per month (or such other amount as is the maximum allowed by law). Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount in full, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
All amounts due under these Terms shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. Title and risk
Risk in and responsibility for the Products shall pass to the Customer on delivery.
Any additional transportation charges, duties and other costs will be stated on the invoice and shall be paid by the Customer in addition to the price of Products. The Customer irrevocably agrees that the Supplier or its agents can enter the Customer’s premises at any time, at the Customers cost, without notice to remove any Products for which payment is in default. Demand for the return or recovery of Products shall not discharge the Customer’s liability to pay the whole of the invoice or the right of the Supplier to sue for the whole invoice amount plus legal costs.
Title to the Products shall not pass to the Customer until the Supplier has received payment in full of all monies owed by the Customer to the Supplier.
Until title to the Products passes to the Customer, the Customer shall ensure the Products are:
are stored separately from other goods held by the Customer, are unaltered and shall be clearly identifiable as the property of the Supplier;
adequately stored and maintained in a satisfactory condition; and
insured for an amount at least equal to their price and in the event of a claim on such policy (which the Customer shall make should they become damaged or lost) any proceeds of the insurance policy shall be held on trust for the Supplier and paid to the Supplier together with any shortfall in the amount due to the Supplier.
The Customer grants to the Supplier an irrevocable licence for the Supplier, its agents and employees to enter any premises where the Products are stored to inspect, count and recover them.
7. Changes to orders
The Supplier may on giving written notice to the Customer:
amend any orders which have not been fulfilled pursuant to an Order Confirmation to exclude one or more of the Products;
include any alternative products (provided they are materially similar in form, fit and function to the Products stated in the Order Confirmation); or
cancel such orders.
The Supplier may cancel any order which has not been fulfilled pursuant to an Order Confirmation in the event of the Customer’s material breach of these Terms and/or in the event of the Customers insolvency, winding up, bankruptcy, appointment of an administrator or receiver or if the Customer ceases or threatens to cease to trade and/or any analogous or similar proceedings. Cancellation shall not affect any rights, remedies, obligations or liabilities of either party that have accrued up to the date of cancellation including the right to claim damages in respect of any breach of these Terms which existed at or before such date.
Where applicable, the Supplier shall provide Services to the Customer in accordance with service terms that shall be agreed between the parties.
Where there is any conflict between these Terms and any additional service terms agreed, the additional service terms shall prevail.
The Supplier warrants that all Products sold to the Customer under these Terms will conform in all material respects to the applicable manufacturer’s specifications for such Products (the ”Warranty“). All other warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose are excluded from these Terms to the fullest extent permitted by law.
The Supplier’s liability under the Warranty is limited, at the Supplier’s election, to (a) a refund of the Customer’s purchase price for such Products (without interest); (b) repair of such Products; or (c) replacement of such Products; provided, however, that such Products must be returned to the Supplier, within the manufacturer’s warranty period, transportation charges prepaid. The Supplier shall transfer to the Customer any transferable warranties and indemnities (if any and to the extent possible) that the Supplier receives from the manufacturer of the Products. The Supplier shall have no liability under the Warranty or otherwise, where the Customer (or any third party) uses a Product for a purpose other than as set out in the description of the Product in the Order Confirmation.
10. Intellectual property rights
The Customer acknowledges that all intellectual property rights (including without limitation copyright and related rights, design rights, moral rights, trademarks and service marks) (“Intellectual Property Rights”) in the Products are the Supplier’s (or its licensor’s) property and nothing in these Terms shall be construed as conferring any licence or granting any rights in favour of the Customer in relation to the Intellectual Property Rights. Any reputation in any trade marks affixed or applied to the Products shall accrue to the sole benefit of the Supplier or any other owner of the trade marks from time to time.
The Customer shall not repackage the Products and/or remove any Intellectual Property Rights notices, confidential or proprietary legends or identification from the Products.
The Customer shall not use (other than as permitted in these Terms) or seek to register any trade mark or trade name (including any company name) which is identical to, confusingly similar to or incorporates any trade mark or trade name which the Supplier or any associated company of Supplier owns or claims rights in anywhere in the world.
Where the Customer wishes to have the Supplier apply the Customer’s own trademarks to the Products on its behalf, the Customer hereby grants a licence to the Supplier under its trademarks for that purpose.
11. Force majeure
The Supplier shall not be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed; or the Supplier may, at its option, cancel any order or remaining part thereof without liability by giving notice of such cancellation to the Customer.
12. Exclusion and limitation of liability
Nothing in these Terms shall limit or exclude the Supplier’s liability for: death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors; fraud or fraudulent misrepresentation; or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
All warranties, conditions and terms not expressly set out in these Terms, whether implied by statute, common law or otherwise (including, without limitation, warranties as to satisfactory quality and fitness for purpose) are excluded to the fullest extent permitted by law. The terms and conditions implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Terms.
The Supplier shall not be liable to the Customer for:
any indirect, special or consequential loss or damage (including but not limited to penalty charges for delay to a project); loss of data or other equipment or property; economic loss or damage; incurring of liability for loss or damage of any nature whatsoever suffered by third parties (including in each case incidental and punitive damages); or
any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill, even if the Supplier is advised in advance of the possibility of any such losses or damages.
The Supplier shall not be liable for any losses arising from the Customer’s subsequent use or misuse of the Products including (without limitation): fair wear and tear; wilful damage; the Customer’s negligence, or that of its agents or employees, any failure to follow the Supplier’s instructions as to use of the Products; abnormal conditions beyond those referred to in the applicable manufacturer’s specifications; or any alteration or repair of the Products by any manufacturing process or otherwise.
The Supplier is not liable for a defect in the Products unless it is notified to the Supplier in accordance with these Terms.
The Supplier is not liable for: shortages in the quantity of Products delivered or damage to or loss of all or part of the Products in transit unless the Customer notifies the Supplier in accordance with these Terms.
The Supplier’s total liability in contract, tort (including negligence), misrepresentation or otherwise in relation to these Terms shall be limited to the amount paid by the Customer for Products subject to such claim. The Customer acknowledges and agrees that the price for the Products reflects the limitations of liability contained in these Terms.
These Terms and any Order Confirmation constitute the entire agreement between the parties and supersede all previous agreements between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms. Each of the parties warrants to the other that it has full power and authority to enter into and perform these Terms. If statements or advice, technical or otherwise, are offered or given to the Customer, then Supplier shall have no responsibility or liability for the content or use of such statements or advice. Each party unconditionally waives any rights it may have to claim damages against the other on the basis of any oral or written statement made by the other. Each party unconditionally waives any rights it may have to seek to rescind these Terms on the basis of any statement made by the other (whether made carelessly or not), unless such statement was made fraudulently. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under these Terms or any order pursuant to an Order Confirmation. If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms. No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives). No failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. No person who is not party to these Terms shall have any right to enforce them.
Any notice or other communication given to a party under or in connection with these Terms shall be in writing and shall be: delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or sent by email to the most recent email address specified in a Purchase Order or Order Confirmation.
Any notice or communication shall be deemed to have been received:
if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day (being a day on Monday to Friday which is not a bank or national holiday in England) after posting or at the time recorded by the delivery service.
15. Governing law and exclusive jurisdiction
These Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to these Terms.
Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms or their subject matter or formation.