Mitcham Building Supplies Terms and Conditions…
Conditions of Sale:
Trade Customers
THE CUSTOMER SHOULD PAY SPECIFIC ATTENTION TO CONDITIONS 4, 5, 7, 8, 9, 10 & 12
1. INTERPRETATION
The following definitions, unless the context requires otherwise, and rules of interpretation in Condition 1 shall apply to these Conditions:
Account: the credit account (if any) provided to the Customer by MITCHAM BUILDING SUPPLIES LTD (hereafter ‘MBS’)
Additional Terms: any terms varying or adding to the Conditions that are included within the order acknowledgement or otherwise agreed in writing by MBS;
Contract: any contract between MBS and the Customer for purchase of Goods in accordance with and subject to these Conditions and the Additional Terms;
Customer: the person, company or other type of organisation that enters into a Contract, in accordance with and subject to the Conditions, to purchase Goods from MBS;
Goods: any goods MBS agrees in a Contract to supply to the Customer;
Price: is defined in Condition 6.1; and
MBS: Mitcham Building Supplies Limited (trading as: MBS) a company registered in England (08240940) whose registered office is at MBS House, 80 Eddington Lane, Herne Bay, Kent, CT6 5TR.
1.1 References to the masculine include the feminine and the neuter, and the singular include the plural and, in each case, vice versa. Reference to a statute or statutory instrument is a reference to it as it is in force for the time being and includes reference to any amendment, extension, application or re‐enactment and includes any subordinate legislation made under it.
1.2 Headings do not affect the interpretation of the Conditions.
2. APPLICATION OF TERMS
2.1 Subject to Condition 2.2, the Conditions apply to all Contracts to the exclusion of all other terms and conditions. No terms or conditions of the Customer (whether endorsed on, delivered with, or contained in the Customer’s purchase order or other documents) shall form part of any Contract and any attempt by the Customer to exclude, vary or limit any Conditions shall be void.
2.2 Any variation to the Conditions, and any representations about the Goods, shall have no effect and shall not form part of the Contract unless expressly agreed in writing by MBS.
2.3 MBS may provide the Customer with an oral or written quotation. A quotation so provided is an invitation to treat by MBS to supply the Goods, subject to the Conditions, to the Customer. A quotation is valid for 30 days from its date, provided that MBS has not previously withdrawn it.
2.4 An acceptance of a quotation or the placing of an order by the Customer shall be deemed to be an offer by the Customer, subject to the Conditions, to purchase the Goods stated therein from MBS.
2.5 No quotation accepted or order placed by the Customer shall be deemed to be accepted by MBS until MBS confirms acceptance orally or in writing or, if earlier, delivers the Goods.
2.6 No binding Contract will come into existence until an order acknowledgement is given by MBS in accordance with Condition 2.5 or, if earlier, by MBS delivering the Goods.
3. DESCRIPTION
3.1 The quantity and description of the Goods is set out in MBS’s quotation and/or order acknowledgement and the Contract.
3.2 All descriptions, drawings, specifications and illustrations and any advertising or other materials issued by MBS, or contained in MBS’s brochures or website, are approximations and for information purposes only, should not be relied on by the Customer as precise or construed literally and shall not form part of the Contract.
3.3 MBS reserves the right to change any descriptions, drawings, specifications, technical data, illustrations, brochures, advertising materials, its website and any other materials provided at any time without notice.
4. DELIVERY
4.1 Unless otherwise agreed in writing by MBS, delivery of the Goods shall take place at MBS’s place of business or the delivery address set out in the Contract and/or in the Account application form (“Delivery Point”).
4.2 MBS will endeavour to deliver the Goods by the date specified by MBS or, if none is specified, within a reasonable period of time. However, any such specified date is an estimate only and it is hereby expressly agreed that time for delivery shall not be, and shall not be made by notice, of the essence.
4.3 MBS may deliver the Goods by separate instalments, which shall be invoiced and paid for separately and in accordance with the provisions of the Contract. Each separate instalment shall be a separate Contract. 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.
4.4 The Customer shall, at its expense, provide adequate and appropriate equipment and manual labour (if appropriate) for unloading the Goods at the Delivery Point. The Customer must inspect and check the Goods on delivery to ensure that they conform to the Contract and the Customer’s requirements. At the time of unloading an authorised representative of the Customer must sign the delivery note (or the equivalent documentation of a carrier) to confirm that the Goods are as ordered and undamaged.
4.5 MBS’s record of the delivery date and quantity and description of Goods delivered to the Customer shall be conclusive evidence of such, unless the Customer can provide conclusive contrary evidence.
4.6 If for any reason the Customer fails to accept delivery of any of the Goods within 24 hours of notification by MBS that the Goods are ready for delivery, wishes to delay delivery, or MBS is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
(a) the Goods will be deemed to have been delivered; and
(b) MBS may store the Goods until actual delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance costs).
4.7 If the Customer has not taken or accepted delivery of the Goods within 10 days of notification by MBS that the Goods are ready for delivery, MBS may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage, insurance and selling costs, account to the Customer for any excess over or charge the Customer for any shortfall in the Price.
4.8 Subject to the other Conditions and unless agreed otherwise by MBS, MBS will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and any similar loss) costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by MBS’s negligence) nor shall any such delay entitle the Customer to repudiate or terminate the Contract unless it exceeds 20 days and only in such a case where the delay is wholly and completely the fault of MBS.
4.9 MBS shall not be liable for delivering the wrong Goods or for non‐delivery of or damage to the Goods (even if caused by MBS’s negligence) unless the Customer notifies MBS in writing within 3 days of the actual delivery date.
4.10 MBS’s liability under Condition 4.9, as a result of the Customer complying with the notice requirements, is limited to, at MBS’s option, replacing or issuing a credit note for the Goods within a reasonable time.
5. RISK/TITLE
5.1 The risk in the Goods shall pass to the Customer on delivery. Title in the Goods shall not pass to the Customer until MBS has received (in cash or cleared funds) from the Customer the full Price for the Goods plus VAT and all other sums which are due to MBS from the Customer.
5.2 Until title in the Goods passes (as set out in Condition 5.1) the Customer shall:
(a) hold the Goods on a fiduciary basis as MBS’s bailee;
(b) store the Goods (at no cost to MBS) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as MBS’s property;
(c) not remove, destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition, keep them insured on MBS’s behalf for their full Price against all risks from the date of delivery and provide MBS with a copy of the insurance policy on request;
(e) notify MBS immediately if any of the events listed in Condition 5.4 occur; and
(f) deliver up the Goods to MBS on demand.
5.3 The Customer may only resell the Goods before title has passed if such sale is a sale of MBS’s property on the Customer’s own behalf as principal, made in the Customer’s ordinary course of business and at the full market value.
5.4 The Customer’s right to possession of the Goods shall end immediately if it:
(a) has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory), except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager or administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding‐ up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer, or the Customer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(b) the Customer suspends, ceases or threatens to cease to carry on all or substantially the whole of its business or the Customer suffers or allows any execution, sequestration or such other process to be levied on its property or obtained against it or encumbers or in any way charges any of the Goods; or
(c) the Customer fails to observe or perform any of its obligations under the Contract or
(d) any event occurs or proceeding is taken, with respect to the Customer, in any jurisdiction to which it is subject that has a similar or equivalent effect to any of the events listed in Condition 5.4 (a) and (b).
5.5 MBS shall be entitled to recover payment for the Goods notwithstanding the fact that title in any of the Goods has not passed from MBS to the Customer.
5.6 The Customer grants MBS, its agents and employees an irrevocable licence to enter any premises where the Goods are or may be stored at any time to inspect or (where the Customer’s right to possession has ended) recover them.
5.7 If the Customer is supplied goods by a third party which are identical to Goods then the Customer shall be obliged to sell the goods supplied by such third parties before the Goods and MBS shall be entitled to assume, unless the contrary is shown to their satisfaction, that the Customer has done so when recovering any Goods in accordance with this Condition 5.
5.8 If before title to the Goods passes to the Customer any of the events listed in Condition 5.4 occur or MBS reasonably believes any such event is about to occur and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy of MBS, MBS may at any time require the Customer to deliver up the Goods or use its rights in Condition 5.6.
5.9 If MBS repossesses any Goods or the Customer delivers up any Goods, in accordance with Condition 5, the Contract for those Goods shall be rescinded.
6. PRICE
6.1 Unless otherwise agreed by MBS in writing and subject to Condition 6.2, the price for the Goods shall be the price stated in the quotation or order acknowledgement provided by MBS to the Customer in accordance with Conditions 2.3 and 2.5, together with any VAT and delivery costs (“Price”).
6.2 The Price is based on the cost of materials, labour, sub‐contracts, transport, taxes and duties and all other relevant costs at the date of the quotation and/or order acknowledgement. MBS reserves the right to vary the Price, by giving notice to the Customer prior to delivery, to take account of any variation (howsoever arising) in these costs or the imposition of any new taxes or duties between the quotation or order acknowledgement date and the delivery date.
7. PAYMENT
7.1 Unless otherwise agreed in writing, for Customers with an Account that has not reached its credit limit each invoice submitted by MBS shall be paid within 30 days of the end of the month following the month of invoice. For Customers without an Account, or with an Account that has reached its credit limit, the Price shall be paid at the time of the order or on receipt of MBS’s invoice as directed by MBS. Time for payment shall be of the essence.
7.2 MBS reserves the right to exercise its absolute discretion and cancel the Account by notice.
7.3 MBS reserves the right to suspend the Account if it decides, for whatever reason, that it requires further security from the Customer for the performance and discharge of the Customer’s obligations under any Contract or for any other reason it considers reasonable. The Customer agrees to use its best endeavours to ensure any additional security required by MBS (including, but not limited to, a third party providing a guarantee) is provided. MBS may decide to reinstate the Account if the Customer provides the additional security required or meets any other conditions required to be satisfied by MBS.
7.4 If MBS exercises its right to cancel or suspend the Account, in accordance with Conditions 7.2 and 7.3 respectively, all sums owed to MBS by the Customer at the date of cancellation or suspension shall be payable on demand and MBS may continue trading with the Customer on the basis set out in Condition 7.1 for Customers without an Account.
7.5 No payment shall be deemed to have been received until MBS has received cash or cleared funds and all sums payable to MBS under a Contract shall become due immediately on its termination, howsoever arising.
7.6 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set‐off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by MBS to the Customer.
7.7 Without prejudice to any of its other remedies, if any amount due from the Customer is not paid in accordance with the Conditions, or if any of the events set out in Condition 5.4 occur, MBS may do all or any of the following: (a) treat any or all Contracts as repudiated by the Customer; (b) without notice suspend or cancel delivery of the Goods under the Contract, and any other Contract, until the Customer pays the outstanding amount(s) in full; (c) appropriate any payment made by the Customer under any other Contract to pay for any outstanding amounts as MBS may, in its sole discretion, think fit; (d) charge interest at the annual rate of 4% above the base rate of Lloyds Bank Plc; (e) claim interest under Late Payment of Commercial Debts (Interest) Act 1998.
7.8 On termination of the Contract, howsoever caused, the rights of MBS in this Condition 7 shall remain in effect.
8. CANCELLATION
8.1 If the Customer cancels the Contract before delivery of the Goods the Customer shall pay MBS such amount as MBS considers reasonable in the circumstances.
8.2 Any amounts payable by the Customer under Condition 8.1 shall be invoiced by MBS within 14 days of the cancellation date and shall be payable by the Customer in accordance with Condition 7.
9. WARRANTIES
9.1 Subject to Conditions 9.2 to 9.6, MBS warrants that the Goods shall conform in all materials respects with their description and applicable specification at the time of delivery and, unless otherwise agreed by MBS in writing, MBS provides no other warranty in respect of the Goods. MBS will endeavour (but does not guarantee) to transfer the benefit of any warranty or guarantee for the Goods given to MBS by the relevant manufacturer to the Customer.
9.2 Subject to Conditions 9.3 to 9.6, if the relevant Goods do not conform with the warranty provided by MBS in accordance with Condition 9.1 MBS shall, at its option, repair or replace such Goods (or the defective part) or issue a credit note at the pro rata Contract rate to the Customer provided that the Customer:
(a) gives written notice of any breach of the warranty to MBS within 7 days of the time when the Customer discovers or ought to have discovered such; and
(b) gives MBS a reasonable opportunity, after receiving the notice, to examine the relevant Goods and the Customer (if asked by MBS) returns the relevant Goods (or the relevant part) to MBS’s premises at the Customer’s cost.
9.3 Condition 9.2 shall not apply if the defect arises as a result of normal wear and tear, the Customer’s negligence or failure to comply with the Conditions or failure to follow MBS’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice or the Customer makes any further use of the Goods after giving notice to MBS in accordance with Condition 9.2 or the Customer alters, modifies, mishandles or repairs such Goods.
9.4 If MBS complies with Condition 9.2 it shall have no further liability for a breach of the warranty in respect of such Goods.
9.5 Any Goods that are returned by the Customer and subsequently replaced by MBS pursuant to Condition 9.2 shall belong to MBS. These Conditions shall apply to any repaired or replacement Goods supplied by MBS.
9.6 MBS’s reasonable opinion as to the cause of the defect shall be final and binding unless the Customer can provide conclusive evidence to the contrary.
10. LIMITATION OF LIABILITY
10.1 The Customer must ensure that the Goods meet its requirements and are suitable for its purposes and MBS shall not be liable for the Customer’s failure to do so. Any recommendations made by MBS are made in good faith, do not constitute a guarantee and cannot be relied on by the Customer.
10.2 Subject to Conditions 4, 8 and 11, Condition 0 sets out the entire financial liability of MBS (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 or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods and any representation, statement, tortious act or omission, including negligence, arising under or in connection with the Contract.
10.3 Subject to Conditions 10.4 and 10.5 and MBS agreeing otherwise in writing:
(a) MBS shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise (in each case whether direct, indirect or consequential) or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract; and
(b) MBS’s total liability in contract, tort (including breach of statutory duty or negligence), misrepresentation, restitution or otherwise arising out of or in connection with the performance or contemplated performance of the Contract shall be limited to £1,000 unless the Price is greater than £1,000, in which case MBS’s liability shall be limited to the Price.
10.4 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.5 Nothing in the Conditions excludes or limits KEW’s liability for death or personal injury caused by MBS’s negligence, or for fraud or fraudulent misrepresentation.
11. FORCE MAJEURE
11.1 MBS reserves the right to defer the date of delivery, cancel the Contract or reduce the volume of the Goods (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond its reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, labour disputes (other than in relation to MBS’s own workforce), or restraints or delays affecting suppliers or carriers, or inability or delay in obtaining supplies of adequate quality, provided that, if the event in question continues for a continuous period in excess of 60 days, the Customer shall be entitled to give notice in writing to MBS to terminate the Contract.
12. INDEMNITY
12.1 The Customer shall be liable to pay MBS (on written demand) for, and indemnify MBS against, all reasonable costs, expenses and losses sustained or incurred by MBS (including, but not limited to, any direct, indirect or consequential losses, loss of profit or reputation, damage to property, loss of opportunity to deploy resources elsewhere, legal costs on an indemnity basis) arising directly or indirectly from the Customer’s fraud, negligence or material breach of the Conditions.
13. GENERAL
13.1 The Customer warrants that it has the necessary authority to enter into the Contract. The Customer warrants that all the information provided to MBS is true and accurate and acknowledges that MBS is relying upon such information in relation to the supply of Goods.
13.2 If there are any differences between the information within the quotation and the order acknowledgement in respect of any Contract the latter shall prevail.
13.3 Each right or remedy of MBS under the Contract is without prejudice to any other right or remedy of MBS whether under the Contract or not.
13.4 All intellectual property rights, including, without limitation, copyright and trademarks, and all other rights in any documents or materials provided by MBS to the Customer under the Contract shall belong to MBS.
13.5 The Customer shall not disclose any confidential information or commercial know‐ how provided by or relating to MBS except as permitted by law.
13.6 If any Condition is found by any court to be wholly or partially illegal, invalid, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, unenforceability or unreasonableness be deemed severable and the remaining Conditions, and the remainder of such Condition, shall continue in full force and effect. In the event that such court decides that such Condition is not severable, the parties agree to substitute such Condition with a legal, valid, enforceable and reasonable Condition which achieves, to the greatest extent possible, the same commercial effect as the original Condition.
13.7 Failure or delay by MBS to enforce, or partially enforce, any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. Any waiver by MBS of any breach of, or any default under, any provision of the Contract by the Customer shall be in writing and shall not be deemed to be a waiver of any subsequent breach or default and shall in no way affect the other provisions of the Contract.
13.8 No provisions of the Contract are enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to the Contract.
13.9 The formation, construction, performance, validity and all aspects of the Contract shall be governed by the law of England and Wales and the parties submit to the exclusive jurisdiction of the English courts.
13.10 All notices sent by the Customer must be sent to MBS at its registered address (as detailed in Condition 1) or by email (accounts@kewlighting.com) or facsimile or as otherwise agreed by MBS. MBS may send notices to the Customer at the email or postal address, or by facsimile to the number, provided by the Customer to MBS.
13.11 All communications between the parties about the Contract, including any notices to be sent or received under the Contract, must be in writing. Notices shall be deemed served on delivery if delivered by hand, 48 hours after posting if sent by post, and on completion of transmission if sent by email or facsimile.