Terms and Conditions
S JONES CONTAINERS LIMITED
CONDITIONS OF BUSINESS
THESE CONDITIONS ARE DIVIDED INTO 3 PARTS. PART I CONTAINS TERMS WHICH WILL APPLY TO ALL TYPES OF CUSTOMERS. PART II CONTAINS TERMS WHICH WILL ONLY APPLY IF YOU ARE A CONSUMER, I.E. AN INDIVIDUAL BUYING PRODUCTS AND/OR SERVICES FROM THE COMPANY AND YOU ARE NOT DOING SO IN THE COURSE OF YOUR BUSINESS. PART III CONTAINS TERMS WHICH WILL ONLY APPLY IF YOU ARE NOT A CONSUMER, I.E. A BUSINESS CUSTOMER BUYING FROM THE COMPANY.
ALL CUSTOMERS BUYING PRODUCTS AND OR SERVICES FROM THE COMPANY WILL BE CONSIDERED TO BE BUSINESS CUSTOMERS UNLESS THE CUSTOMER NOTIFIES THE COMPANY THAT THE CUSTOMER IS BUYING FOR ITS PERSONAL USE.
PART I - THESE TERMS APPLY TO BOTH CUSTOMERS WHO ARE CONSUMERS AND CUSTOMERS WHO ARE BUSINESSES UNLESS OTHERWISE STATED.
In these conditions the following words have the following meanings unless the context requires otherwise.
“Bespoke Products/Bespoke Services” means any Products and/or Services to the extent that, at the Customer’s request they are non-standard and/or have been modified in any way including the addition of any optional extras;
“Company’s Premises” means the Company’s premises at Anglian Road, Aldridge, Walsall, West Midlands WS9 8ET, England or any other replacement premises of the Company from time to time;
“Contract” means any contract between the Company and the Customer incorporating these conditions for the sale of Products and/or the provision of the Services;
“Consumer” means any individual who, not acting in the course of a business, purchases Products and/or Services from the Company;
“Company” means S Jones Containers Limited (Company Number: 03747019) whose registered office is at Anglian Road, Aldridge, Walsall, West Midlands WS9 8ET;
“Customer” means the person or entity whose order for Products/Services is accepted by the Company or to whom the Company supplies the Products and/or the Services;
“Delivery” means the delivery and siting of the Products to be performed by the Company for the Customer;
“Delivery Questionnaire” means the questionnaire completed by the Customer on the Website, or over the telephone, giving sufficient detail to enable the planning and execution of Delivery, as updated in writing from time to time;
"Incoterms 2010” means the international rules for the interpretation of trade terms (2010 Edition) of the International Chamber of Commerce;
“Intellectual Property Rights” all formulae, know-how, rights to inventions, design rights, trademarks, trade names, utility models, patents, copyright, domain names, skills and or know-how, and any other intellectual property rights of a similar nature (whether or not registered) whether existing now and or in the future, subsisting anywhere in the world.
“Liability” means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities;
“New Container(s)/Single Trip Container(s)” means a newly manufactured container that has been leased by a third party to make a single trip to transport goods from overseas in to the UK and, once vacated by the third party, has been transported to a depot nominated by the Company meaning that the container may show signs of previous use;
“Products” means any products and/or goods ordered from the Company by the Customer or to be supplied by the Company to the Customer which may include containers often known as shipping containers and any goods, products and/or materials which are to be utilised in the performance of the Services and in which title is intended to pass to the Customer once the Services have been completed and any Bespoke Products;
“Services” means the services and/or work to be performed by the Company for the Customer including Bespoke Services as more specifically detailed in any acceptance of an order in accordance with clause 3.2 below;
“Used Container(s)” means a container that has been used by third parties for the shipping and transport of goods for a period likely to be in excess of 12 years;
“order Variation” has the meaning given in clause 10.6.
1.1 The term “and/or” means either or both of the alternatives.
1.2 Any term defined by Incoterms 2010 shall have the same meaning in this Contract. If there is any conflict between the provisions of Incoterms 2010 and the express terms of this Contract, the express terms of this Contract shall prevail and take precedence.
1.3 A reference to writing or written includes emails.
1.4 The schedules to these conditions form part of the Contract.
- Basis Of Contract
2.1 These conditions shall govern the agreement between the Company and the Customer to the exclusion of any other terms or conditions.
2.2 Orders placed by the Customer leading to a contract which is not expressed to be subject to these conditions shall still be subject to them.
2.3 These conditions supersede all previous terms and conditions and shall replace any terms and conditions previously notified to the Customer.
2.4 The Transport and Delivery Terms & Conditions and the Delivery Questionnaire, where applicable, shall form part of the Contract.
- Orders And Contract
3.1 Quotations are not binding or capable of acceptance and are estimates only unless agreed in writing by an authorised representative of the Company. Quotations shall remain valid for a period of 30 calendar days. Quotations may be withdrawn or changed by the Company at any time for any reason during this period by oral or written notice.
3.2 The Contract between the Customer and the Company will become legally binding only when an authorised representative of the Company has notified the Customer in writing (which includes confirmation by email) of its acceptance of the Customer’s order or by its actions the Company has commenced performance of the Customer’s order.
3.3 The Company shall have the right to refuse to accept any orders placed for Products and/or Services.
3.4 The Customer shall be responsible for the accuracy of an order and for giving the Company any information necessary for the Company to perform the Contract.
3.5 Subject to clause 9, any samples, drawings, descriptive matter, images on the Website or in catalogues and brochures or other marketing materials of the Company, are for the sole purpose of giving an approximate idea of the Products and or Services and shall not form part of the Contract. The Products and Services may slightly vary from the images provided and the Company shall not be liable to the Customer for any such slight variances. The Customer purchases the Products in the knowledge, and enters in to the Contract on the basis, that:
3.5.1 New Containers/Single Trip Containers may show signs of previous usage typical of a container that has been leased by a third party to make a single trip to transport goods from overseas in to the UK and, once vacated by that third party, transported to a depot used by the Company; and
3.5.2 Used Containers will be subject to damage typical of a Product that has used by third parties for the shipping and transport of goods for a period likely to be in excess of 12 years;
and in both cases the Products may include dents, scratches and other imperfections.
- Delivery and Performance of any Services
4.1 Dates for Delivery of the Products and/or performance of the Services are estimates only and are not guaranteed. They are also subject to any matter beyond the Company’s reasonable control.
4.2 The Company will use its reasonable endeavours to ensure Delivery of the Products and/or performance of the Services on the dates specified.
4.3 The Customer shall procure during normal working hours that the Company has free right of access to the address for Delivery for the purposes of delivering the Products. Some Products may require Delivery by large truck and vehicle access must be sufficient to allow this if necessary.
4.4 If the Customer refuses or fails to take delivery of the Products and/or allow performance of the Services (unless this is due to the Company's fault) then:
4.4.1 the Customer must pay any costs and losses reasonably incurred by the Company as a result of its refusal or failure;
4.4.2 the Company shall be entitled to withhold delivery of any other Products and/or performance of any other Services; and
4.4.3 the Company may treat the Contract as cancelled by the Customer.
4.5 If the parties agree that the Products are to be collected from the Company’s Premises then the Customer shall collect the Products within 14 calendar days of being notified that the Products are ready for collection. If the Products are not collected by the Customer within the specified period the Company may dispatch the Products to the Customer at the Customer’s expense and risk and/or store the Products at the Customer’s expense and risk until dispatch and/or collection. The Company will invoice the Customer for any such costs associated with the storage of the Products. The Customer shall not be permitted to collect, and the Company will not dispatch, the Products until such time as all outstanding costs have been paid in full by the Customer.
4.6 Where specified, the Company’s price includes Delivery. The Company may charge for Delivery and if the Company does, the Company will confirm any applicable delivery costs at the time the Company received the Customer’s order.
4.7 The Company’s Transport and Delivery Terms & Conditions shall apply to the Delivery.
5.1 The Company may comply with reasonable requests by the Customer for postponement of Delivery of the Products and/or performance of the Services but shall be under no obligation to do so.
5.2 Where Delivery of the Products and/or performance of the Services are postponed at the Customer’s request then the Customer shall pay all costs and expenses of the Company incurred as a result including reasonable charges for storage, transportation and insurance. In addition the Customer shall be obliged to pay for the Products and/or Services as if Delivery and/or performance had not been postponed or as otherwise agreed in writing with the Company. Also if when the Customer asks for the Products/Services to be reinstated/restarted the cost of the Products/Services has increased then the Company has the right to charge, and the Customer shall pay, the increased price for the postponed Products/Services.
5.3 Where Delivery of the Products and/or performance of the Services are postponed at the Customer’s request then the Customer shall be liable to the Company for any loss incurred as a result including the loss of work for any employees or third parties.
5.4 If the Delivery of the Products and/or performance of the Services are postponed for a period of more than 12 months from the original date for performance, the Company may, at its option at any time after the end of the 12 months, terminate the Contract and the Customer shall pay all costs and expenses of the Company incurred as a result. The Company may sell the relevant Products at the best price reasonably obtainable (which is usually scrap value in relation to Bespoke Products or Bespoke Services) and (after deducting all reasonable sale costs) apply the sale proceeds against any monies owing or payable by the Customer to the Company (either under the Contract or any other agreement). Any remaining balance will be paid to the Customer. If any Bespoke Products are not owned by the Company then the Customer agrees to give good title to the Products to allow the Company to sell them under this clause.
- Price And Payment
6.1 The price of the Products and/or the Services shall be as quoted to the Customer or otherwise as shown in the Company’s price list, or as displayed on the Website, current at the date of the acceptance of the order. While the Company tries to ensure that all prices quoted on the Website and in the Company's mail order catalogue or quoted over the telephone are accurate, errors may occur. If the Company discovers an error in the price of the Products the Customer has ordered the Company will inform the Customer as soon as possible and give the Customer the option of either reconfirming its order at the correct price or cancelling it. If the Company is unable to contact the Customer the Company will treat the order as cancelled. If the Customer cancels an order due to an error in price and the Company has already received payment for the Products and/or Services, the Customer will receive a full refund.
6.2 If the Customer fails to make any payment in full on the due date the Customer agrees to pay for any reasonable additional administration costs and/or interest (both before and after judgment) on the amount unpaid at the rate of 4% above the base rate from time to time of the Company’s bank as invoiced by the Company from time to time. Such interest shall be compounded monthly.
6.3 Any monies received by the Company from the Customer may be applied by the Company against any monies due by the Customer to the Company or any other liability of the Customer to the Company in any order at the discretion of the Company.
6.4 Payment shall not be deemed to be made until the Company has received cleared funds in respect of the full amount outstanding.
6.5 The Company shall be entitled to render an invoice to the Customer at any time after the Products or Services have been ordered.
6.6 If payment in full is not made to the Company when due then the Company may withhold or suspend future or current deliveries of Products, and/or performance of the Services and Delivery and/or performance under any other agreement with the Customer.
6.7 If any Services are cancelled or this Contract is terminated or Delivery and/or performance is suspended before completion of the Services the Company shall be entitled to be paid its reasonable costs and expenses for that part of the Services performed. The Company may invoice the Customer accordingly and such monies shall be immediately due for payment.
- Credit Limit
7.1 The Company may set a credit limit for the Customer. The Company reserves the right to refuse to accept orders for Products and/or Services and/or to suspend or withhold delivery of Products and/or the performance of the Services if such Products and/or Services would result in the Customer exceeding its credit limit or the credit limit is already exceeded.
8.1 Subject to a consumer’s right to cancel, as outlined in clause 16 below, if the Customer purports to cancel this Contract and/or refuses to accept Delivery of ordered Products and/or performance of ordered Services the Customer will reimburse and pay to the Company any and all lost profits, costs (including increased administration costs and legal costs on a full recovery basis), expenses, damages and any other loss and/or Liability suffered by the Company as a result.
- Technical Drawings
9.1 Any technical drawings supplied by the Company to the Customer shall only be approximate unless referenced on the Company’s quotation or agreed in writing.
9.2 The quantity, quality, description and/or technical drawings for the Products and/or the Services shall be that set out in the Company’s quotation (if agreed by the Customer) or the Customer’s order (if agreed by the Company) unless otherwise agreed in writing by the parties.
9.3 The Customer is responsible for checking the quotation and satisfying itself that any technical drawings are adequate for the Products and/or Services and that the Products and/or Services will be fit for the purpose for which they are intended.
9.4 The Company shall have no Liability for errors in any technical drawings or details supplied by the Customer and the Customer is solely responsible for their accuracy.
9.5 Details and/or technical drawings in brochures and price lists produced by the Company or on the Website are intended as a guide only and give a general approximation of the Products and/or Services.
9.6 Subject to clause 10, the Company reserves the right to make changes to the technical drawings of the Products and/or Services as required from time to time by law, applicable safety requirements or manufacturing requirements provided that they do not have a material adverse effect on the quality and/or performance of the Products and/or the Services.
9.7 The Customer warrants and represents that the technical drawings for the Bespoke Products and/or Bespoke Services provided by the Company comply with any applicable legislation, regulations, industry standards and any other requirements of any relevant government or regulatory bodies. The Company shall have no responsibility to ensure compliance of the Bespoke Products and/or Services on behalf of the Customer and shall have no liability for any loss arising from any non-compliance of the Bespoke Products and/or Services.
9.8 The Customer agrees to indemnify and keep indemnified the Company against any and all claims, losses, expenses, proceedings, actions, awards, liabilities, costs and any other losses and/or liabilities incurred as a result of any breach by the Customer of this clause 9.
9.9 The Customer agrees to indemnify and keep indemnified the Company against any and all claims, losses, expenses, proceedings, actions, awards, liabilities, costs (including legal costs on a full indemnity basis and increased administration costs) and any other losses and/or liabilities arising out of the Company’s use of technical drawings, details and/or drawings supplied by the Customer.
- Order Variation
10.1 Either party may propose changes to the Customer’s order but no changes proposed by the Customer shall come into effect until a relevant order Variation has been signed by the Company. An order Variation shall be a document setting out the proposed changes and the effect that those changes will have on:
10.1.1 the technical drawings and/or the order;
10.1.2 the price of the Products;
10.1.3 the timetable for Delivery and/or performance of the Services; and
10.1.4 any other aspect of the Contract.
10.2 If the Company wishes to make a change to the Customer’s order it shall provide a draft order Variation to the Customer and it shall notify the Customer of the time period which it has to respond to the order Variation. If the Customer fails to respond within the designated time period the Company shall be entitled to continue with the order without implementing the order Variation.
10.3 If the Customer wishes to make a change to its order:
10.3.1 it shall notify the Company and provide as much detail as the Company reasonably requires of the proposed changes, including the timing of the proposed change; and
10.3.2 the Company shall, as soon as reasonably practicable after receiving the information at clause 10.3.1, provide a draft order Variation to the Customer.
10.4 The Company shall have the absolute discretion to accept or reject an order Variation. In the event that the Company rejects an order Variation, it shall have the right to complete the order in accordance with the original Contract plus the previous order Variations approved by the Company.
10.5 The Customer agrees to indemnify and keep indemnified the Company against any and all claims, losses, expenses, proceedings, actions, awards, liabilities, costs and any other losses and/or liabilities incurred as a result of any breach by the Customer of this clause 10.
- Intellectual Property Rights And Confidentiality
11.1 Any Intellectual Property Rights in any materials owned or controlled by the Customer at the date of the Contract which are provided by the Customer for use in relation to the Contract shall remain the property of the Customer.
11.2 The Customer warrants and represents that all Intellectual Property Rights in the technical drawings for the Bespoke Products and/or Bespoke Services and or other materials provided by the Customer for use in relation to the Contract are the property of the Customer and do not infringe any Intellectual Property Rights of any third party and the Customer agrees to indemnify the Company in full for all claims, losses, liabilities, costs and expenses incurred as a result of a breach by the Customer of this clause 11.2.
11.3 Subject to clause 11.1, all Intellectual Property Rights in the Products and/or arising from the Services shall be owned by the Company absolutely.
11.4 The Customer agrees that it will do all acts and/or things and execute all documents and/or deeds which are, in the opinion of the Company, necessary or desirable to give effect to clause 11.3 above and/or to assist the Company in the application, registration and or renewal of such Intellectual Property Rights.
11.5 The Customer shall promptly and fully notify the Company of:
11.5.1 any actual, threatened or suspected infringement of any Intellectual Property Rights which comes to the Customer's notice; and
11.5.2 any claim by any third party that comes to the Customer's notice that the sale or advertisement of the Products infringes the rights of any person.
11.6 In the event of any claim, proceeding or suit by a third party against the Company alleging an infringement of any Intellectual Property Right connected with the Products or Services, the Customer shall defend the Company at the Customer's expense and the Customer herein agrees to indemnify the Company against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other reasonable professional costs and expenses) suffered or incurred by the Company arising out of or 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 supply or use of the Products or the Services.
11.7 The Customer agrees that it will keep confidential and not use, except for purposes contemplated by this Contract, all information relating to the Products and/or Services and all confidential business information regarding the Company, which may be disclosed to it or which it may learn except where such information is public knowledge or is required to be disclosed by law.
12.1 The Company does not provide any guarantee in relation to the Products nor in relation to any elements of an original Product within Bespoke Products and/or Bespoke Services. If you are purchasing as a Consumer this does not affect or limit your statutory rights.
12.2 The Company guarantees that the Bespoke Products/Bespoke Services will be free from defects in materials and/or workmanship for a period of 12 months from:-
12.2.1 in the case of Bespoke Services the date of completion of the performance of the Services; and/or
12.2.2 in the case of Bespoke Products the agreed date for Delivery of the Bespoke Products.
12.3 The Company shall not have any Liability under the guarantee in clause 12.2 above if any of the following apply:-
12.3.1 any defect in the Bespoke Products or Bespoke Services arises from any drawing, design or technical drawings supplied by the Customer;
12.3.2 the faults arise after risk in the Bespoke Products or Bespoke Services has passed and which are caused by fair wear and tear, any subsequent mechanical, chemical, electrolytic or other damage not due to a defect in the Bespoke Products or Bespoke Services as appropriate; and/or
12.3.3 the faults or defects are caused by willful damage, abnormal working conditions, failure to follow the Company’s instructions, misuse, alteration or repair of Bespoke Products or Bespoke Services without the Company’s approval, improper maintenance or negligence on the part of the Customer or a third party; and or
12.3.4 the Customer makes further use of the Bespoke Products/Bespoke Services after giving notice in accordance with clause 12.4.
12.4 To enable the Company to assess whether the Bespoke Products/Bespoke Services are covered by the terms of the guarantee given by the Company, the Customer shall, at the Company's option, send the defective Bespoke Products or the subject of the Bespoke Services to the Company’s Premises, or such other place as the Company may specify, at the cost of the Customer. Alternatively, the Customer shall, at the Company’s option, procure that the Company has access to inspect the relevant Bespoke Products or Bespoke Services. The guarantee in clause 12.2 is conditional upon the Customer complying with this clause 12.4.
12.5 Any work carried out by the Company which is not covered by the guarantee in clause 12.2 above, which the Customer requires to be carried out, will be charged for by the Company.
12.6 The Company agrees that it will repair, replace or re-perform defective Bespoke Products or Bespoke Services covered by the guarantee in clause 12.2 above within a reasonable time of being notified by the Customer of the defect.
12.7 The Company shall have no Liability to the Customer under the guarantee in clause 12.2 above unless any defect is notified to the Company within 14 calendar days of the defect becoming apparent or suspected or when it should reasonably have become apparent to or suspected by the Customer.
12.8 The guarantee in clause 12.2 above will not apply if the Customer has not paid in full for the relevant Bespoke Products or Bespoke Services on the due date for payment.
12.9 The Company is not liable for the costs incurred by the Customer for any repairs carried out by a third party to the Product if it is under guarantee unless (1) the Company has been given reasonable opportunity to rectify any defects at its own cost; and (2) those costs have been agreed by the Company in writing prior to the repairs taking place and in order for the Company to provide the authorisation the Customer shall provide the Company with details of (a) the third party, (b) the required repairs and (c) the price.
- Repairs And Replacements
13.1 The Company will at its option either refund the price, repair, replace free of charge or re-perform any defective Products and/or Services (which are defective at Delivery or upon completion of performance) where the defect is apparent on inspection provided that the defect is notified to the Company within 14 calendar days of Delivery of such Products or performance of the Services.
13.2 The Company may at its sole discretion replace, repair free of charge, re-perform or refund the price of defective Products and/or Services which are not notified to the Company within the specified time limit where in the opinion of the Company the defect would not have been ascertainable on inspection and has been notified to the Company as soon as reasonably practicable after Delivery or completion of performance.
13.3 To enable the Company to assess and/or repair the defective Products and/or Services, the Customer shall send, at the Company’s option, the defective Products or the subject matter of the defective Services to the Company’s Premises, or such other place as the Company may specify, at the cost of the Customer. Alternatively, the Customer shall, at the Company’s option, procure that the Company has access to relevant premises to enable the Company to view and inspect the defective Products and/or Services.
13.4 The Company will at its option either refund the price of or replace free of charge any Products missing from delivery of Products provided that the missing items are notified to the Company within 5 calendar days of Delivery or, in the event of total non-delivery, this fact is notified to the Company within 5 calendar days of the due date for Delivery.
14.1 No waiver by the Company of any breach of this Contract shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
14.2 If any provision of this Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
14.3 The Company shall have no Liability to the Customer for any delay in performance of this Contract (other than in relation to payment) to the extent that such delay is due to any events outside the Company’s reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, subcontractor delays, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar events. If the Company is affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance.
14.4 The Customer shall not assign its interest in the Contract (or any part) without the written consent of the Company.
14.5 All third party rights are excluded and no third party shall have any right to enforce this Contract. This shall not apply to members of the Company’s group from time to time who shall, subject to the Company’s consent, have the right to enforce this Contract as if they were the Company. Any rights of a third party to enforce this Contract may be varied and/or extinguished by agreement between the parties to this Contract without the consent of any such third party.
14.6 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 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, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in this clause; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working 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 email, one working day after transmission. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14.8 This Contract is governed by and interpreted in accordance with English law.
PART II - THESE TERMS ONLY APPLY TO CUSTOMERS WHO ARE CONSUMERS
- Price and Payment
15.1 The Company's prices show the amount of any applicable VAT and if not then the price is inclusive of VAT.
15.2 Unless the Company agrees otherwise, payment is due at the time the Customer submits its order. If the Company does not accept the Customer's order, the Company will refund the Customer any payment made by it in respect of such cancelled order.
15.3 The Customer must pay all sums due to the Company in full by either debit or credit card. By ordering Products and/or Services the Customer is giving the Company its consent to pass details on to the Company's appointed secure payment provider for the purposes of processing its payment.
- Cancellation and Return
16.1 The Customer's cancellation rights in clauses 16.3 prevail over any other circumstances in which the Customer may be entitled to cancel its order under these conditions.
16.2 If the order was placed by any means of distance communication, e.g. email, website, telephone, the Customer may cancel its order for Products at any time within the 14 calendar days following the day on which the Customer receives such Products unless the order was for Bespoke Products in which case this clause 16.2 does not apply.
16.3 The Customer may cancel its order for Services at any time within the 14 calendar days following the day on which the Customer placed its order unless the Services start with the Customer's agreement before the expiry of this period in which case the Customer's right to cancel its order for Services under this clause will end when the Services start unless the order was for Bespoke Services in which case this clause 16.3 does not apply.
16.4 For the avoidance of doubt, the Customer shall not have the right to cancel a Contract which is for the provision of Bespoke Products and or Bespoke Services. If the Customer purports to cancel a Contract for Services pursuant to clause 16.3, the Customer must pay for the Services where it has agreed to their provision during the period of 14 calendar days from the date of the order.
16.5 If the Customer wants to cancel any Contract in accordance with this clause, the Customer must notify the Company (by completing the cancellation form which is available on the Website or by calling or emailing customer services on 01922 741751 or firstname.lastname@example.org) within the relevant timescale set out in this clause 16. If any Products have already been delivered by the Company to the Customer, the Customer must promptly arrange for and pay for the return of such Products to the Company and, for the avoidance of doubt, the Products must be returned within 14 calendar days from the date on which the cancellation form is submitted to the Company. The Company reserves the right to reject any returns received after such period. At the Customers request, the Company may agree to collect the Products provided it is at the cost of the Customer. If the Company agrees to collect the Products, the Customer must pay for the return delivery in advance of collection. If the Customer fails to pay for the return delivery prior to collection by the Company, the Company shall charge the Customer for the Company's direct costs in recovering the Products from the Customer.
16.6 Risk in the Products shall remain with the Customer until the Company receives the Products from the Customer. This means the Customer will be responsible for care of the Products and the Customer must bear the cost of any loss of and/or damage to the Products before the Company receives them from the Customer.
16.7 If the Customer cancels any Contract in accordance with this clause, the Customer will receive a full refund of the price it paid for the relevant Products and/or Services, including any charges paid by the Customer for the initial Delivery of the Products (and for the avoidance of doubt not to include any charges associated with re-deliveries required as a result of a failed initial Delivery). If the Services have commenced, at the request of the Customer, there is no right to cancel and no refund will be paid. The Customer will be responsible for the amount by which the value of the goods is diminished as a result of the consumer handling the goods beyond what is necessary to establish their nature, characteristics and functioning and the Company shall deduct any such sum from the refund due to the Customer. The Company will process the refund due to the Customer as soon as possible and, in any case, within 14 calendar days of the day on which the Company receives the Products back from the Customer.
16.8 If the Customer cancels the Contract and has requested that the Company arrange for the return delivery at the Customers cost, the Products must be immediately available, and remain available, for collection by the Company. If the Products are not available for collection at the time arranged for return delivery by the Company, the Customer shall be responsible for the costs of the aborted delivery and any further return delivery that is required to return the Products to the Company.
16.9 The Company shall not be obliged to agree to any cancellation requests submitted other than in accordance with this clause 16 unless the Customer agrees to pay to the Company its reasonable costs and expenses incurred as a direct result of the Customer's cancellation.
16.10 The Company will arrange for the collection of the Products at the Customer’s cost, when requested by the Customer, in a reasonable time period and until such time as the Company collects the Products, the Customer will use its reasonable endeavours to take care of, and be responsible for, the safety of the Products.
17.1 If the Customer:-
17.1.1 fails to make any payment to the Company when due;
17.1.2 breaches the terms of this Contract and, if the breach is capable of remedy, has not remedied the breach within 14 calendar days of receiving notice requiring the breach to be remedied; and/or
17.1.3 persistently breaches any one or more of the terms of this Contract;
then the Company shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 17.2 below.
17.2 If any of the events set out in clause 17.1 above occurs in relation to the Customer then:-
17.2.1 the Company may withhold delivery of any undelivered Products and stop any Products in transit;
17.2.2 the Company may withhold the performance of any Services and cease any Services in progress;
17.2.3 all monies owed by the Customer to the Company shall immediately become due and payable; and
17.2.4 the Company may take any action necessary to recover any debts owed to the Company by the Customer.
- Risk and Ownership of Products
18.1 Risk in the Products shall pass to the Customer at the time of Delivery. This means that from the time of Delivery the Customer will be responsible for care of the Products and the Customer must bear the cost of any loss of and/or damage to the Products.
18.2 Delivery shall be deemed to occur at the time when the Products arrive at the place of delivery requested by the Customer or when collected from the Company's Premises by the Customer or their carrier.
18.3 The Customer shall take ownership of the Products at the point payment for the Products is received by the Company in full and cleared funds.
19.1 The Customer agrees to reimburse and pay to the Company any and all losses, proceedings, lost profits, damages, awards, expenses, claims, costs (including increased administration costs and legal costs on a full recovery basis), actions and any other losses and/or liabilities suffered by the Company and arising from or due to any breach of contract, any breach of duty of care and/or any breach of statutory duty by the Customer.
19.2 Nothing in this Contract shall exclude or limit any statutory rights of the Customer which may not be excluded or limited due to the Customer acting as a Consumer. Any provision which would be void under any consumer protection legislation or other legislation shall to that extent, have no force or effect.
19.3 If the Customer enters into the Contract as a Consumer the Products and or Services are supplied to the Customer for domestic or private use only. If the Customer uses the Products and or Services for any commercial, business or re-sale purposes the Company’s liability to the Customer will be limited as set out in clause 25.
19.4 The parties agree to submit to the non-exclusive jurisdiction of the English courts in relation to any disputes connected with this Contract.
PART III - THESE TERMS ONLY APPLY TO BUSINESS CUSTOMERS
- Basis of Contract
20.1 No variation to these conditions shall be binding on the Company unless contained in the Company’s quotation or agreed in writing between the Customer and a director of the Company.
20.2 The Company’s employees, sub-contractors and/or agents are not authorised to make any representations or warranties concerning the Products and/or Services unless confirmed by the Company in writing.
20.3 No oral warranties or representations shall bind the Company (unless given in writing by a director of the Company).
20.4 These conditions constitute the entire agreement between the Company and the Customer in relation to the Products and or Services. The Customer acknowledges that it does not rely on any representation and/or warranty which has not been made in accordance with these conditions.
- Delivery and Postponement
21.1 Where Products are to be delivered in instalments, each delivery shall constitute a separate and distinct contract and failure by the Company to deliver, or any claim by the Customer in respect of, any instalment shall not entitle the Customer to repudiate and/or terminate this Contract as a whole.
21.2 The Customer shall have no right to reject Products and/or Services and shall have no right to rescind for late delivery and/or performance unless the due date for Delivery and/or performance has passed and the Customer has served on the Company a written notice requiring the Contract to be performed and giving the Company not less than 90 calendar days in which to do so and the notice has not been complied with.
21.3 Where Delivery of the Products and/or performance of the Services are postponed in accordance with clause 5 at the Customer’s request then the Customer shall indemnify the Company for any loss incurred as a result including the loss of work for any employees or third parties and disruption to work and manufacturing schedules.
- Price and Payment
22.1 Except as otherwise stated, prices for Products are EXW (ex works) Incoterms 2010, and the Customer shall be liable to pay the Company’s charges (if any) for shipping, transport, packaging and insurance.
22.2 The Company may increase its prices in relation to the Products and/or the Services which the Company has already agreed to supply where the increase is to take account of increases in costs, expenses and/or materials suffered by the Company which are outside of the Company’s control.
22.3 The Customer will be informed in writing by the Company of any increases in prices for the Products and/or the Services.
22.4 The Company’s prices are exclusive of any applicable VAT for which the Customer shall additionally be liable.
22.5 The Company’s terms of payment are net cash upon receipt of the invoice by the Customer unless specified otherwise in the Company’s quotation. Time for payment shall be of the essence.
22.6 The Company shall be entitled to invoice each Delivery of Products and/or stage of the Services separately.
22.7 The Customer shall pay all sums due to the Company under this Contract without any set- off, deduction, counterclaim and/or any other withholding of monies.
- Property And Risk
23.1 Risk in the Products shall pass to the Customer at the time of Delivery. Delivery shall be deemed to occur:-
23.1.1 when the Products arrive at the place of Delivery if the Customer engages the Company to deliver the Products by its own transport;
23.1.2 when a carrier collects the Products for transport to the Customer or the Products are loaded onto a carrier’s transport for Delivery; or
23.1.3 in all other cases when the Products leave the Company’s Premises.
23.2 Risk of damage to or loss of the Products utilised in the Services shall pass to the Customer once the relevant Product to which the Services relate is delivered to the Customer.
23.3 The Company shall retain title and ownership of the Products (which were originally owned by the Company) until it has received payment in full in cleared funds of all sums due and/or owing for all Products and/or Services supplied to the Customer by the Company under this Contract and any other agreement between the Company and the Customer.
23.4 Until payment in full of the price for all Products and/or Services supplied to the Customer, the Products (which were originally owned by the Company) shall be stored separately from any products or goods belonging to the Customer or any third party and must be clearly marked and identified as being the Company’s property. The Customer agrees that the Company’s employees and/or agents shall be entitled to enter the Customer’s premises to check compliance with this clause.
23.5 Until title in the Products (which were originally owned by the Company) has passed to the Customer the Customer shall keep the Products insured for the price at which such Products were sold to the Customer against all insurable risks and procure that the Company is named on such policy of insurance as loss payee. Any monies received from the Customer by the Company in accordance with this clause shall not discharge the Customer’s liability to pay the price for the goods plus interest accrued in accordance with clause 6.2 but shall be set off against any such liability.
24.1 If the Customer:-
24.1.1 fails to make any payment to the Company when due;
24.1.2 breaches the terms of this Contract and, if the breach is capable of remedy, has not remedied the breach within 14 calendar days of receiving notice requiring the breach to be remedied;
24.1.3 persistently breaches any one or more terms of this Contract;
24.1.4 pledges or charges any Products which remain the property of the Company, or ceases or threatens to cease to carry on business, or proposes to compound with its creditors, applies for an interim order under Section 252 Insolvency Act 1986 or has a bankruptcy petition presented against it, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver appointed over all or any of its assets, or takes or suffers any similar action in any jurisdiction;
24.1.5 appears to the Company due to the Customer’s credit rating to be financially inadequate to meet its obligations under the Contract; and/or
24.1.6 appears reasonably to the Company to be about to suffer any of the above events;
then the Company shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 24.2 below.
24.2 If any of the events set out in clause 24.1 above occurs in relation to the Customer then:-
24.2.1 the Company may enter, without prior notice, any premises of the Customer (or premises of third parties with their consent) where Products owned by the Company may be and repossess and dispose of or sell any Products found which are owned by the Company so as to discharge any sums due to the Company under this Contract or any other agreement with the Customer;
24.2.2 the Customer automatically is no longer entitled to re-sell, use or part with the possession of any Products owned by the Company until the Customer has paid in full all sums due to the Company under this Contract or any other agreement with the Customer unless the Company gives its express written agreement to such use and/or disposal of the Products;
24.2.3 the Company may withhold Delivery of any undelivered Products and stop any Products in transit;
24.2.4 the Company may withhold the performance of any Services and cease any Services in progress;
24.2.5 the Company may cancel, terminate and/or suspend without Liability to the Customer any Contract with the Customer; and/or
24.2.6 all monies owed by the Customer to the Company shall forthwith become due and payable.
24.3 The Company shall have a lien over all property or goods belonging to the Customer which may be in the Company’s possession (including any Product owned by the Customer) in respect of all sums due from the Customer to the Company.
24.4 Upon the termination of the Contract for any reason if any monies due to the Company from the Customer have not been paid within 14 calendar days of such termination the Company may sell any property or goods over which it has a lien in accordance with clause 24.3 above (and the Customer agrees that the Company may give good title for such property and/or goods) and shall apply the proceeds of sale firstly in discharging any costs or expenses of sale, secondly in repaying any interest owed by the Customer to the Company, thirdly in payment of any principal sums owed to the Company and fourthly the Company shall account to the Customer for the remainder (if any).
- Limitations On Liability
25.1 The Company shall have no Liability for defective Products and/or Services where the defect has been caused or contributed to by the Customer to the extent so contributed.
25.2 The Company shall have no Liability to the Customer if the price for the Products and/or the Services has not been paid in full by the due date for payment.
25.3 The Company shall have no Liability to the Customer for defective Products and/or Services, Products not dispatched or Products damaged or lost in transit unless the event is notified to the Company within the appropriate time limit set out in this Contract.
25.4 The Company shall have no Liability for additional damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer’s continued use of defective Products and/or Services after a defect has become apparent or suspected or should reasonably have become apparent to the Customer.
25.5 The Customer shall give the Company a reasonable opportunity to remedy any matter for which the Company is liable before the Customer incurs any costs and/or expenses in remedying the matter itself. If the Customer does not do so the Company shall have no Liability to the Customer for that matter.
25.6 The Customer shall produce to the Company written evidence of any claims for which it is alleged that the Company is liable together with written details of how the loss was caused by the Company and the steps the Customer has taken to mitigate the loss before the Company shall have any Liability for the claim by the Customer.
25.7 The Company shall have no Liability to the Customer to the extent that the Customer is covered by any policy of insurance and the Customer shall ensure that the Customer’s insurers waive any and all rights of subrogation they may have against the Company.
25.8 The Company shall have no Liability to the Customer for any:-
25.8.1 consequential or indirect losses;
25.8.2 loss of profits and/or damage to goodwill;
25.8.3 economic and/or other similar losses;
25.8.4 special damages; and/or
25.8.5 business interruption, loss of business contracts, opportunity and/or production.
25.9 The Company shall not be liable for any losses arising from the Customer's (or any third party’s) subsequent use or misuse of the Products including (without limitation):
25.9.1 fair wear and tear;
25.9.2 willful damage; and/or
25.9.3 the Customer's negligence, or that of its agents or employees or any third party as to use of the Products including but not limited to use in an application for which the Product was not intended or in an application where the surface of the coating is scratched.
25.10 The Company’s total Liability to the Customer shall not exceed the total price of the Products and/or Services under this Contract. To the extent that any Liability of the Company to the Customer would be met by any insurance of the Company then the Liability of the Company shall be extended to the extent that such Liability is met by such insurance.
25.11 Each of the limitations and/or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for each of:
25.11.1 Liability for breach of contract and/or under this Contract;
25.11.2 Liability in tort (including negligence);
25.11.3 Liability for breach of statutory duty; and
25.11.4 Liability for breach of Common Law.
except clause 25.10 above which shall apply once only in respect of all the said types of Liability.
25.12 Nothing in this Contract shall exclude or limit the Liability of the Company for death or personal injury due to its negligence or any Liability which is due to the Company’s fraud or any other liability which it is not permitted to exclude or limit as a matter of law.
25.13 The Customer shall be under a duty to mitigate any loss, damage, costs or expenses that it may suffer.
25.14 All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
25.15 The limitations in this Contract are necessary in order to allow the Company to provide the Products and/or the Services at its current prices.
25.16 If the Customer requires greater protection then the Company will agree to modify the limitations and extend its guarantees in return for the payment of a higher price for the Products and/or Services.
26.1 The Customer agrees to indemnify and keep indemnified the Company against any and all losses, proceedings, lost profits, damages, awards, expenses, claims, costs (including increased administration costs and legal costs on a full indemnity basis), actions and any other losses and/or liabilities suffered by the Company and arising from or due to any breach of Contract, any tortious act and/or omission and/or any breach of statutory duty by the Customer.
26.2 The parties agree to submit to the exclusive jurisdiction of the English courts in relation to any disputes connected with this Contract.