1. Definitions and interpretation
In these Conditions the following definitions apply:
Business Day means a day other than a Saturday, Sunday or bank or public holiday;
Conditions means the Supplier's terms and conditions of sale set out in this document;
Contract means the agreement between the Supplier and the Customer for the sale and purchase of Goods incorporating these Conditions and the Order;
Customer means the person who purchases the Goods from the Supplier and whose details are set out in the Order;
Force Majeure means an event or sequence of events beyond a party's reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving the Supplier's or its suppliers workforce, but excluding the Customer's inability to pay or circumstances resulting in the Customer's inability to pay;
Goods means the goods and other physical material set out in the Order and to be supplied by the Supplier to the Customer;
Location means the address for delivery of the Goods as set out in the Order;
Order means an order for the Goods from the Supplier placed by the Customer;
Price has the meaning given in clause 3.1;
Specification means the description, any samples, or specification of the Goods and their packaging set out or referred to in the Order;
Supplier means Sapphire Glass Merchants Limited of Unit 2, Newton Road, Hinckley, Leicestershire LE10 3DS, company registration number 06795963.
In these Conditions, unless the context requires otherwise:
1.2.1any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
1.2.2a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.3a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.4a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.5a reference to a gender includes each other gender;
1.2.6words in the singular include the plural and vice versa;
1.2.7any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.8a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form
1.2.9a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time; and
1.2.10a reference to legislation includes all subordinate legislation made from time to time under that legislation.
Application of these Conditions
2.1These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2No terms or conditions endorsed on, delivered with, or contained in the Customer's purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
2.3No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Supplier.
2.4Each Order by the Customer to the Supplier shall be an offer to purchase Goods subject to these Conditions.
2.5An Order may be withdrawn or amended by the Customer at any time before acceptance by the Supplier
2.6The offer constituted by an Order shall remain in effect and capable of being accepted by the Supplier.
2.7The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Goods shall arise, until the earlier of:
2.7.1the Supplier’s written acceptance of the Order; or
2.7.2the Supplier dispatching the Goods or notifying the Customer that they are available for collection (as the case may be).
2.8Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.9The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Goods and are incapable of being accepted by the Customer.
2.10Marketing and other promotional material relating to the Goods are illustrative only and do not form part of the Contract.
3.1The price for the Goods shall be as set out in the Order or, in default of such provision, shall be calculated in accordance with the Supplier's scale of charges in force from time to time before the date the Order is made.
3.2The Prices are exclusive of:
3.2.1packaging, delivery, and insurance which shall be charged in addition at the Supplier’s standard rates, and
3.2.2VAT (or equivalent sales tax).
3.3The Customer shall pay any applicable VAT (or equivalent sales tax) to the Supplier on receipt of a valid VAT invoice.
3.4The Supplier may increase the Prices at any time by giving the Customer not less than 15 Business Days’ notice in writing provided that the increase does not exceed 10% of the Prices in effect immediately prior to the increase.
3.5Notwithstanding clause 3.4, the Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Goods which exceeds 10% and which is due to any factor beyond the control of the Supplier.
4.1The Supplier shall invoice the Customer for the Goods at any time.
4.2The Customer shall pay all invoices (unless otherwise agreed):
4.2.1in full without deduction or set-off, in cleared funds within 30 days of the date of each invoice; and
4.2.2to the bank account nominated by the Supplier.
4.3Time of payment is of the essence.
5 Credit limit
The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.
6.1An Order shall specify whether the Goods are to be:
6.1.1delivered by the Supplier, or by a carrier appointed by the Supplier, to the Location on the date(s) specified in the Order; or
6.1.2made available for collection by the Customer at the Supplier's, or carrier's, premises set out in the Order (as the case may be). The Customer shall collect the Goods within the period specified in the Order.
6.2The Goods shall be deemed delivered:
6.2.1if delivered by the Supplier under clause 6.1.1, on arrival of the Goods at the Location; or
6.2.2if delivered by a carrier under clause 6.1.1, on delivery of the Goods by the Supplier to the carrier; or
6.2.3if collected by the Customer under clause 6.1.2, when the Supplier makes the Goods available for collection at the Supplier's, or carrier's, premises (as the case may be).
6.3The Customer shall not be entitled to reject any delivery of Goods on the basis that an incorrect volume of Goods has been supplied provided the volumes are within the tolerances (if any) set out in the Order.
6.4The Goods may be delivered by instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.5Delivery of the Goods shall be accompanied by a delivery note stating:
6.5.1the date of the Order;
6.5.2the product numbers, type and quantity of Goods in the consignment; and
6.5.3any special handling instructions.
6.6Time of delivery is not of the essence. The Supplier shall use its reasonable endeavours to meet delivery dates but such dates are approximate only.
6.7The Supplier shall not be liable for any delay in or failure of delivery caused by:
6.7.1the Customer's failure to: (i) make the Location available, (ii) prepare the Location as required for delivery of the Goods or (iii) provide the Supplier with adequate instructions for delivery;
6.7.2the Customer's failure to collect the Goods from the Supplier's premises; or
6.7.3an event of Force Majeure.
6.8If the Customer fails to accept delivery of the Goods the Supplier shall store and (at its discretion) insure the Goods pending delivery, and the Customer shall pay all costs and expenses incurred by the Supplier in doing so.
6.9If 30 Business Days following the due date for delivery or collection of the Goods, the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of the Goods. The Supplier shall:
6.9.1Deduct reasonable storage charges and reasonable costs of resale; and
6.9.2account to the Customer for any excess of the resale price over, or invoice the Customer for any shortfall of the resale price below, the Price paid by the Customer for the Goods.
Risk in the Goods shall pass to the Customer on Delivery.
8.1Title to the Goods shall pass to the Customer once the Supplier has received payment in full and cleared funds for the Goods.
8.2Until title to the Goods has passed to the Customer, the Customer shall:
8.2.1hold the Goods as bailee for the Supplier;
8.2.2store the Goods separately from all other material in the Customer's possession;
8.2.3take all reasonable care of the Goods and keep them in the condition in which they were delivered;
8.2.4insure the Goods from the date of Delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their Price (iv) noting the Supplier's interest on the policy;
8.2.5ensure that the Goods are clearly identifiable as belonging to the Supplier;
8.2.6not remove or alter any mark on or packaging of the Goods;
8.2.7inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in clauses 13.1.1 to 13.1.4 or 13.2.1 to 13.2.10; and
8.2.8on reasonable notice permit the Supplier to inspect the Goods during the Customer’s normal business hours and provide the Supplier with such information concerning the Goods as the Supplier may request from time to time.
8.3Notwithstanding clause 8.2, the Customer may use the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clauses 13.1.1 to13.1.4 or 13.2.1 to 13.2.10 has occurred or is likely to occur.
8.4If the Customer resells the Goods in accordance with clause 8.3, title to the Goods shall pass to the Customer immediately prior to the resale.
8.5If, at any time before title to the Goods has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses 13.1.1 to 13.1.4 or 13.2.1 to13.2.10, the Supplier may:
8.5.1require the Customer at the Customer's expense to re-deliver the Goods to the Supplier; and
8.5.2if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
9.1The Supplier warrants that the Goods shall, for a period of 5 years from Delivery (the Warranty Period):
9.1.1conform in all material respects to the Order and Specification;
9.1.2be free from material defects in design, material and workmanship; and
9.2The Supplier shall, at its option, repair, replace, or refund the Price of, any Goods that do not comply with clause 9.1, provided that the Customer:
9.2.1serves a written notice on Supplier:
(a)during the Warranty Period in the case of defects discoverable by a physical inspection; or
(b)in the case of latent defects, within one month from the date on which Customer became aware (or should reasonably have become aware) of the defect;
9.2.2provides the Supplier with sufficient information as to the nature and extent of the defects and the uses to which the Goods had been put prior to the defect arising;
9.2.3gives the Supplier a reasonable opportunity to examine the defective Goods; and
9.2.4returns the defective Goods to the Supplier at the Customer's expense.
9.3The provisions of these Conditions, including the warranties set out in clause 9.1, shall apply to any Goods that are repaired or replaced with effect from Delivery of the repaired or replaced Goods.
9.4The Supplier shall not be liable for any failure of the Goods to comply with clause 9.1:
9.4.1where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise in the normal course of use of the Goods;
9.4.2to the extent caused by the Customer's failure to comply with the Supplier's instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;
9.4.3to the extent caused by the Supplier following any specification or requirement of the Customer in relation to the Goods;
9.4.4where the Customer modifies any Goods without the Supplier's prior consent or, having received such consent, not in accordance with the Supplier’s instructions; or
9.4.5where the Customer uses any of the Goods after notifying the Supplier that they do not comply with clause 9.1.
9.5Except as set out in this clause 9:
9.5.1the Supplier gives no warranties and makes no representations in relation to the Goods; and
9.5.2shall have no liability for their failure to comply with the warranty in clause 9.1, and all warranties and conditions (including the conditions implied by sections 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
10 Indemnity and insurance
10.1The Customer shall indemnify the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses which the Supplier may suffer or incur directly or indirectly from the Customer’s breach of any of its obligations under the Contract.
10.2The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under the Contract. On request, the Customer shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.
11 Limitation of liability
11.1The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.
11.2Subject to clauses 11.5 and 11.7, the Supplier’s total liability shall not exceed the Price of the Goods.
11.3Subject to clauses 11.5 and 11.7, the Supplier shall not be liable for consequential, indirect or special losses.
11.4Subject to clauses 11.5 and 11.7, the Supplier shall not be liable for any of the following (whether direct or indirect):
11.4.1loss of profit;
11.4.2loss of data;
11.4.3loss of use;
11.4.4loss of production;
11.4.5loss of contract;
11.4.6loss of opportunity;
11.4.7loss of savings, discount or rebate (whether actual or anticipated);
11.4.8harm to reputation or loss of goodwill;
11.4.9labour costs relating to or incidental to the removal, replacement, repair, or re-installation of the Goods
11.5The limitations of liability set out in clauses 11.2 to 11.4 shall not apply in respect of any indemnities given by either party under the Contract.
11.6Except as expressly stated in the Contract, and subject to clause 11.7, all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
11.7Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
11.7.1death or personal injury caused by negligence;
11.7.2fraud or fraudulent misrepresentation;
11.7.3any other losses which cannot be excluded or limited by applicable law.
12 Force Majeure
12.1A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:
12.1.1promptly notifies the other of the Force Majeure event and its expected duration; and
12.1.2uses best endeavours to minimise the effects of that event.
12.2If, due to Force Majeure, a party:
12.2.1is or shall be unable to perform a material obligation; or
12.2.2is delayed in or prevented from performing its obligations for a total of more than 30 days in any consecutive period of 60 days;
the other party may, within 30 days, terminate the Contract on immediate notice.
13.1The Supplier may terminate the Contract or any other contract which it has with the Customer at any time by giving notice in writing to the Customer if:
13.1.1the Customer commits a material breach of the Contract and such breach is not remediable;
13.1.2the Customer commits a material breach of the Contract which is not remedied within 14 days of receiving written notice of such breach;
13.1.3the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 14 days after the Supplier has given notification that the payment is overdue; or
13.1.4any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
13.2The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
13.2.1stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
13.2.2is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;
13.2.3becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
13.2.4has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
13.2.5has a resolution passed for its winding up;
13.2.6has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
13.2.7is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within 7 days of that procedure being commenced;
13.2.8has a freezing order made against it;
13.2.9is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
13.2.10is subject to any events or circumstances analogous to those in clauses 13.2.1 to 13.2.9 in any jurisdiction;
13.3The Supplier may terminate the Contract any time by giving not less than 7 days’ notice in writing to the Customer if the Customer undergoes a change of control.
13.4If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 13, it shall immediately notify the Supplier in writing.
13.5Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
14.1Any notice or other communication given by a party under these Conditions shall:
14.1.1be in writing and in English;
14.1.2be signed by, or on behalf of, the party giving it (except for notices sent by email); and
14.1.3be sent to the relevant party at the address set out in the Contract
14.2Notices may be given, and are deemed received:
14.2.1by hand: on receipt of a signature at the time of delivery;
14.2.2by post: at 9.00 am on the second Business Day after posting;
14.2.3by fax: on receipt of a transmission report from the correct number confirming uninterrupted and error-free transmission ; and
14.2.4by email: on receipt of an email from the correct address.
14.3Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 14.1 and shall be effective:
14.3.1on the date specified in the notice as being the date of such change; or
14.3.2if no date is so specified, 5 Business Days after the notice is deemed to be received.
14.4This clause 14 does not apply to notices given in legal proceedings or arbitration.
15 Cumulative remedies
The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.
Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Customer’s obligations only.
17 Further assurance
The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
18 Entire agreement
18.1The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
18.2Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
18.3Nothing in these Conditions purports to limit or exclude any liability for fraud.
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and is duly signed or executed by, or on behalf of, the Supplier.
The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent which it may withhold or delay at its absolute discretion.
21 Set off
21.1The Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract or under any other contract which the Supplier has with the Customer.
21.2The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
22 No partnership or agency
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party's behalf.
23 Equitable relief
The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
24.1If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
24.2If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
25.1No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
25.2No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.
26 Compliance with law
The Customer shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
27 Conflicts within contract
If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail.
28 Third party rights
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
29 Governing law and Jurisdiction
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes o
Supplier: SAPPHIRE GLASS MARCHANTS LTD, of Unit 2, Newton Road, Hinckley Leics. LE10 3DS (contact – Stefan O’Meara. E-mail – email@example.com. Tel – 01455 616355)
The Customer has read and accepts the Order and Contract subject to the Conditions above.
Signed by or on behalf of the Customer.........................Date.20..
Signed by or on behalf of the Supplier.......Date.20..