1. INTERPRETATION
1.1 Definitions.
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.3.
Contract: the contract between Supplier and Customer for the sale and purchase and purchase of the Goods in accordance with these Conditions.
Customer: the person, company or firm who purchases the Goods from Supplier.
Force Majeure Event: an event or circumstance beyond a party’s reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Order: Customer’s order for the Goods, as set out in in Customer’s purchase order form, Customer’s written acceptance of Supplier’s quotation, or overleaf, as the case may be.
Specification: the specification for the Goods, as set out in Supplier’s catalogue or on the Website, or where provided by Customer, the specification for the Goods provided by Customer to Supplier.
Supplier: Contactum Limited (registered in England and Wales with company number 06835712).
Website: Supplier’s website located on the internet at www.contactum.co.uk.
1.2 Interpretation
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted; a reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; (c) a reference to writing or written includes faxes and emails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of Customer that is inconsistent with these Conditions.
2.2 The Order constitutes an offer by Customer to purchase the Goods in accordance with these Conditions. Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 Any samples, drawings, descriptive matter or advertising produced by Supplier and any descriptions or illustrations contained in Supplier’s catalogues or brochures, other than the Specification, are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.5 A quotation for the Goods given by Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.
2.6 Where Customer provides the Specification to Supplier, Customer is responsible for ensuring that the applicable Specification is complete and accurate, and complies with applicable law.
3. GOODS
3.1 The Goods are described in the Specification. Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by Customer, Customer shall indemnify Supplier against all liabilities, costs, expenses, damages and losses (including any legal and other reasonable professional costs and expenses) suffered or incurred by Supplier in connection with any claim made against Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Supplier’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
4. DELIVERY
4.1 Supplier shall ensure that: (a) each delivery of the Goods is accompanied by a delivery note that shows all relevant Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and (b) if Supplier requires Customer to return any packaging materials to Supplier, that fact is clearly stated on the delivery note. Customer shall make any such packaging materials available for collection at such times as Supplier shall reasonably request. Returns of packaging materials shall be at Supplier’s expense.
4.2 Supplier shall deliver the Goods to such location as the parties may agree (Delivery Location) at any time after Supplier notifies Customer that the Goods are ready.
4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or Customer’s failure to provide Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or Customer’s failure to provide Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If Customer fails to accept delivery of the Goods within three Business Days of Supplier notifying Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Supplier’s failure to comply with its obligations under the Contract: (a) delivery of the Goods shall be deemed to have been completed at 9.00am on the third Business Day after the day on which Supplier notified Customer that the Goods were ready; and (b) Supplier shall store the Goods until delivery takes place, and charge Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the day on which Supplier notified Customer that the Goods were ready for delivery Customer has not accepted delivery of them, Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to Customer for any excess over the price of the Goods or charge Customer for any shortfall below the price of the Goods.
4.8 If Supplier delivers up to and including 5% more or less than the quantity of Goods ordered Customer may not reject them, but on receipt of notice from Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
4.9 Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle Customer to cancel any other instalment.
5. QUALITY
5.1 Supplier warrants that on delivery the Goods shall: (a) conform in all material respects with the Specification; (b) be free from material defects in design, material and workmanship; and (c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979). Refer to Warranty Terms and Conditions.
5.2 Subject to clause 5.3, if: (a) Customer gives notice in writing to Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1, (b) Supplier is given a reasonable opportunity of examining such Goods, and (c) Customer (if asked to do so by Supplier) returns such Goods to Supplier’s place of business at Customer’s cost, Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events: (a) Customer makes any further use of such Goods after giving notice in accordance with clause 5.2; (b) the defect arises because Customer failed to follow Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Good or (if there are none) good trade practice regarding the same; (c) the defect arises as a result of Supplier following any drawing, design or Specification supplied by Customer; (d) Customer alters or repairs such Goods without the written consent of Supplier; (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or (f) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, Supplier shall have no liability to Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by Supplier.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to Customer on completion of delivery.
6.2 Title to the Goods shall not pass to Customer until the earlier of: (a) Supplier receives payment in full (in cash or cleared funds) for the Goods, in which case title to the Goods shall pass at the time of payment; and (b) Customer resells the Goods, in which case title to the Goods shall pass to Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to Customer, Customer shall: (a) store the Goods separately from all other goods held by Customer so that they remain readily identifiable as Supplier’s property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (d) notify Supplier immediately if it becomes subject to any of the events listed in clause 8.1(b) or (c); and (e) give Supplier such information relating to the Goods as Supplier may require from time to time.
6.4 Subject to clause 6.5, Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Supplier receives payment for the Goods. However, if Customer resells the Goods before that time: (a) it does so as principal and not as Supplier’s agent; and (b) title to the Goods shall pass from Supplier to Customer immediately before the time at which resale by Customer occurs.
6.5 If, before title to the Goods passes to Customer, Customer becomes subject to any of the events listed in clause 8.1(b) or (c), then, without limiting any other right or remedy Supplier may have: (a) Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and (b) Supplier may at any time: (i) require Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and (ii) if Customer fails to do so promptly, enter any premises of Customer or of any third party where the Goods are stored in order to recover them.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in Supplier’s published price list in force as at the date of delivery.
7.2 Supplier may, by giving notice to Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to: (a) any factor beyond Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (b) any request by Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or (c) any delay caused by any instructions of Customer or failure of Customer to give Supplier adequate or accurate information or instructions.
7.3 The price of the Goods: (a) excludes amounts in respect of value added tax (VAT), which Customer shall additionally be liable to pay to Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and (b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to Customer.
7.4 Supplier may invoice Customer for the Goods on or at any time after the completion of delivery.
7.5 Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Supplier. Time of payment is of the essence.
7.6 If Customer fails to make any payment due to Supplier under the Contract by the due date for payment, then Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer shall pay the interest together with the overdue amount.
7.7 Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
8. TERMINATION
8.1 Without limiting its other rights or remedies, Supplier may terminate the Contract with immediate effect by giving written notice to Customer if: (a) Customer commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so; (b) Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors, being wound up (whether voluntarily or by order of the court), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; (c) Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or (d) Customer’s financial position deteriorates to such an extent that in Supplier’s opinion Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2 Without limiting its other rights or remedies, Supplier may suspend provision of the Goods under the Contract or any other contract between Customer and Supplier if Customer becomes subject to any of the events listed in Clause 8.1(b) or (c), or Supplier reasonably believes that Customer is about to become subject to any of them, or if Customer fails to pay any amount due under this Contract on the due date for payment.
8.3 Without limiting its other rights or remedies, Supplier may terminate the Contract with immediate effect by giving written notice to Customer if Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
8.4 On termination of the Contract for any reason Customer shall immediately pay to Supplier all of Supplier’s outstanding unpaid invoices and interest.
8.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9. LIMITATION OF LIABILITY – CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE
9.1 Nothing in these Conditions shall limit or exclude Supplier’s liability for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; (d) defective products under the Consumer Protection Act 1987; or (e) any matter in respect of which it would be unlawful for Supplier to exclude or restrict liability.
9.2 Subject to clause 9.1: (a) Supplier shall under no circumstances whatsoever be liable to Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and (b) Supplier’s total liability to Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
10. FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 14 days, the party not affected may terminate this Contract by giving ten days’ written notice to the affected party.
11. CONFIDENTIALITY
11.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 11.2.
11.2 Each party may disclose the other party’s confidential information: (i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 11; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
12. GENERAL
12.1 Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Supplier.
12.2 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.3 Except as expressly provided, no variation of the Contract shall be effective unless it is in writing and signed by the parties.
12.4 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not: (a) waive that or any other right or remedy; nor (b) prevent or restrict the further exercise of that or any other right or remedy.
12.5 If any provision or part-provision of the Contract 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 the Contract.
12.6 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax or email. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to above; if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission. The provisions of this clause 12.6 shall not apply to the service of any proceedings or other documents in any legal action.
12.7 No one other than a party to the Contract shall have any right to enforce any of its terms.
12.8 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales. The application of the United Nations Convention on Contracts for the International Sales of Goods (Vienna 1980) is excluded.
12.9 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.