Business Day – a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Buyer – the person or firm who purchases the Goods from the Company.
Company – Gilberts (Blackpool) Limited (registered in England and Wales with company number 00673483).
Conditions – the terms and conditions set out in this document as amended from time to time in accordance with clause 14.4.
Contract – the contract between the Company and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Force Majeure Event – an event or circumstance beyond a party’s reasonable control including but not limited to strikes, lock outs or other industrial disputes (whether including the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, civil disturbance, import or export regulations or embargoes, compliance with any law or governmental order, rule, reputation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
Goods – the goods (or any part of them) set out in the Order.
Order – the Buyer’s order for the Goods, as set out in the Buyer’s purchase order form or in the Buyer’s written acceptance of the Company’s quotation, the Buyer’s purchase order form, the Buyer’s written acceptance of the Company’s quotation, or overleaf, as the case may be.
Specification – any specification for the Goods, including any related plans, drawings, requirements or instructions, that is agreed by the Buyer and the Company.
(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 emails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Buyer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
2.5 Any samples, drawings, descriptive matter or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures 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.
2.6 A quotation for the Goods given by the Company shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.
3.1 The Goods are described in the Company’s catalogue as modified by any applicable Specification and will be manufactured to sizes or Specifications within the tolerances set out in the Supplier’s catalogue current at the time of manufacture. Sizes specified by the Buyer will be deemed to be stated in accordance with the practice prevailing in the industry as follows: width x height, unless otherwise stated in the Order or Supplier’s quote.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Buyer:
(a) the Buyer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the Specification. This clause 3.2 shall survive termination of the Contract; and
(b) the Buyer is responsible for ensuring the accuracy of the information set out in the Order (including any applicable Specification) and for providing to the Company any information requested with sufficient time to enable the Company to perform the Contract.
3.3 Nothing in this Contract is intended to grant any licence or make any assignment of any Intellectual Property Right owned by the Company in relation to the Goods at the date of the Order or made, obtained or licensable by it in the future.
3.4 The Buyer shall return to the Company, upon demand any Specification, drawing and/or design of any Goods (including any part or component) provided to the Buyer by the Company in contemplation of any agreement between the parties for the supply of the Goods.
3.5 The Company may amend the Specification of the Goods, if required by any applicable statutory or regulatory requirements, which do not materially affect their quality or performance.
4.1 The Company shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, and all relevant Buyer and Company 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 the Company requires the Buyer to return any packaging materials to the Company, that fact is clearly stated on the delivery note. The Buyer shall make any such packaging materials available for collection at such times as the Company shall reasonably request. Returns of packaging materials shall be at the Company’s expense.
4.2 The Company shall deliver the Goods to the location set out in the Supplier’s written acceptance of order or such other location as the parties may agree in writing (Delivery Location) at any time after the Company notifies the Buyer that the Goods are ready. If the Delivery Location is the Supplier’s premises (as set out on the Supplier’s written acceptance order), the Buyer shall collect the Goods from the Company’s premises or such other location as may be advised by the Company prior to delivery within three Business Days of the Company notifying the Buyer that the Goods are ready.
4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location or when they are deemed delivered in accordance with clause 4.8.
4.4 The Supplier may deliver Orders by instalments in such quantities and at such intervals as it may determine, which may be invoiced and paid for separately. References in this Contract to Orders shall, where applicable, be read as references to instalments. The Buyer may not cancel an instalment because of any delay in delivery or defect in another instalment.
4.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Company will use reasonable endeavours to make delivery on the quoted delivery date and shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer’s failure to provide the Company with adequate delivery instructions, failure to comply with its obligations at clause 4.7 or to provide any other instructions that are relevant to the supply of the Goods, including information that enables the Supplier to identify the exact location for off loading the Goods.
4.6 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
4.7 The Buyer shall provide at the delivery address on the date anticipated for delivery an employee or other authorised agent to take delivery of the Goods and to sign any documentation required to acknowledge receipt of the Goods. If the Buyer fails to comply with this clause the Company may, at its option, deliver the Goods and accept as proof of delivery a document signed by a third party who is or appears to be connected with the site or buildings at the address given for delivery.
4.8 If the Buyer fails to take or accept delivery of the Goods within five (5) Business Days of the Company notifying the Buyer that the Goods are ready (including by failing to comply with clause 4.7 above), then, except where such failure or delay is caused by a Force Majeure Event or the Company’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Company notified the Buyer that the Goods were ready; and
(b) the Company shall store the Goods until the earlier of delivery taking place or the expiry of the period set out in clause 4.9 below and charge the Buyer for all related costs and expenses (including insurance).
4.9 If ninety (90) days after the day on which the Company notified the Buyer that the Goods were ready for delivery the Buyer has still not taken or accepted delivery of them (as the case may be), the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall.
5. DELIVERIES OUTSIDE OF THE UK
5.1 Where the delivery is to take place outside the United Kingdom, the Buyer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Company, the Buyer shall make those licences and consents available to the Company prior to the relevant shipment.
6. WARRANTY AND LIABILITY
6.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period) that Goods shall where applicable:
(a) Conform in all material respects with the description and any applicable 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); and
(d) be fit for any purpose held out by the Company.
6.2 Subject to clause 6.3, if:
(a) the Buyer gives notice in writing to the Company within 7 days of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time, but within the warranty period in any event, that some or all of the Goods do not comply with the warranty set out in clause 6.1;
(b) the Company is given a reasonable opportunity of examining such Goods; and
(c) the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Buyer’s cost,
the Company shall, at its option, repair or replace the defective Goods (or part of them), or refund the price of the defective Goods in full.
6.3 The Company shall not be liable for the Goods’ failure to comply with the warranties set out in clause 6.1 and 6.3 in any of the following events:
(a) the Buyer makes any further use of such Goods after giving notice in accordance with clause 6.2;
(b) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Company following any drawing, design, bills of quantities, sizes or Specification supplied by the Buyer;
(d) the Buyer alters or repairs such Goods without the written consent of the Company;
(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 their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.4 The warranties set out in clause 6.1 do not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Buyer shall be entitled only to the benefit of any such warranty or guarantee given by the manufacturer to the Company.
6.5 Except as provided in this clause 6, the Company shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 6.1.
6.6 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.
6.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
7. DELAYS REQUESTED BY BUYER
7.1 In the event that the Buyer wishes to delay the delivery date, the Buyer must give written notice to the Company of such variation.
7.2 The Buyer shall be liable for any costs arising in relation to the variation including storage and insurance of the Goods and all related costs and expenses.
7.3 If the Buyer delays the delivery date by more than six (6) months in total, this will be deemed a cancellation of the Order and the Company may charge a cancellation fee in accordance with clause 11.1.
8. TITLE AND RISK
8.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
8.2 Title to the Goods shall not pass to the Buyer until the earlier of:
(a) the Company receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Company has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 8.5(b).
8.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
(a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Company’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 the Company immediately if it becomes subject to any of the events listed in clause 10.1; and
(e) give the Company such information relating to the Goods as the Company may require from time to time.
8.4 Notwithstanding the generality of clause 8.2, the Supplier may at any time after delivery elect to transfer title in the Goods to the Buyer, in which case, payment for the Goods shall immediately become due.
8.5 Subject to clause 8.6, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Buyer resells the Goods before that time:
(a) it does so as principal and not as the Company’s agent; and
(b) title to the Goods shall pass from the Company to the Buyer immediately before the time at which resale by the Buyer occurs.
8.6 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 10.1, then, without limiting any other right or remedy the Company may have:
(a) the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Company may at any time:
(i) require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(ii) if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
9. PRICE AND PAYMENT
9.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Company’s published price list in force as at the date of despatch from the Company’s premises and in the case of an order for delivery by instalments the price payable for each instalment shall be the Company’s published price in force at the date of despatch from the Company’s premises of each instalment.
9.2 The Company may, by giving notice to the Buyer:
(a) at any time up to one calendar month before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) 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:
(i) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(ii) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate or accurate information or instructions.
9.3 The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Company 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 the Buyer.
9.4 The Company may invoice the Buyer for the Goods on or at any time after the completion of delivery and where delivery is in instalments this shall apply to each instalment notwithstanding that other instalments have not yet been delivered.
9.5 The Buyer shall pay the invoice in full and in cleared funds by the end of the month following the month the invoice was dated. Payment shall be made to the bank account nominated in writing by the Company. Time for payment is of the essence.
9.6 If the Buyer fails to make any payment due to the Company under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank’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. The Buyer shall pay the interest together with the overdue amount.
9.7 The Buyer 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). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Company to the Buyer.
10.1 Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Buyer if:
(a) the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within seven days of being notified in writing to do so;
(b) the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), 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) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Buyer’s financial position deteriorates to such an extent that in the Company’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.2 Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Company if the Buyer becomes subject to any of the events listed in clause 10.1(a) to clause 10.1(d), or the Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract or under any other contract between the parties on the due date for payment.
10.3 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
10.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest.
10.5 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.
10.6 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.
11. CANCELLATION CHARGES
11.1 Due to the bespoke nature of the Goods and the Company’s limited ability to resell the Goods that have already been prepared following an Order, if the Buyer cancels an Order then, without prejudice to any other rights of the Company, the Buyer shall pay to the Company a cancellation fee, determined by the Company (acting reasonably) taking into account the costs incurred by the Company in sourcing materials or parts for the Goods, the stage of manufacture of the Goods, whether the Goods or any part of them can be reused and any scrap value and any other relevant factors as the Company may determine.
12. LIMITATION OF LIABILITY
12.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
12.2 Subject to clause 12.1:
(a) the Company shall under no circumstances whatsoever be liable to the Buyer, 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;
(b) the Company shall not be liable for any loss or claim arising out of the Buyer’s liability to third parties including claims for liquidated or ascertained damages even if the Company was aware of any contract between the Buyer and a third party that may give rise to them;
(c) the Company’s total liability to the Buyer 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 the price of the Goods.
12.3 Without prejudice to any of the foregoing provisions of this clause, the Company may agree, by prior authorisation signed by a director, to accept returns of Goods without any admission of defects in the Goods or any failure to company with this Contract. In these circumstances, provided the Buyer returns the Goods to the Company at the Buyer’s cost (at such address as the Company may specify) in a complete, good and saleable condition (as determined by the Company), the Company will, within twenty eight days of receiving the Goods, issue a credit note of such amount notified to the Buyer prior to the return of the Goods.
13. FORCE MAJEURE
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract to the extent such delay or failure results from a Force Majeure Event.
14.1 Assignment and other dealings.
(a) The Company 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.
(b) The Buyer 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 the Company.
(a) Each party undertakes that it shall not at any time during this agreement, and for a period of two years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.2(b).
(b) 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 this agreement. 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 14.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
14.3 Entire agreement.
(a) This 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.
(b) 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
14.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives) being in relation to the Company, a director.
14.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract 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.
14.6 Severance. 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.
(a) 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, fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause (a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am 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.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14.8 Third party rights. No one other than a party to this Contract will have any right to enforce any of its terms.
14.9 Governing law. 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.
14.10 Jurisdiction. 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.