1. INTERPRETATION AND APPLICATION OF CONDITIONS OF SALE
1.1 The following definitions apply to these conditions:
(a) Buyer: the person, firm or company who purchases the Goods from the Company.
(b) Company: Barber Wilsons & Co Ltd.
(c) Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these conditions.
(d) Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2 Subject to any variation under condition 1.4 any Contract between the Company and the Buyer for the sale and purchase of the Goods shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
1.3 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract.
1.4 These conditions apply to all the Company’s sales, any variation to these conditions shall have no effect unless expressly agreed in writing and signed by a duly authorised representative of the Company.
1.5 Each order for Goods by the Buyer will be subject to these conditions.
1.6 Orders placed by the Buyer will not be accepted by the Company unless backed up by written confirmation of Goods required on the said order.
1.7 The Buyer shall ensure that its Order together with any applicable specification of Goods are complete and accurate.
1.8 Any quotation is given on the basis that no Contract shall come into existence until the Company acknowledges the Order to the Buyer. Any quotation is valid for 30 days from its date.
2.1 The quantity and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order.
2.2 All samples, drawings, descriptive matter and illustrations contained in the Company’s catalogues / brochures are issued for the sole purpose of giving an approximate idea of the Goods described in them and as such do not form part of any Contract.
3.1 The Goods shall be delivered, at a cost to the Buyer of £10.00, to all UK destinations via next day delivery service. Any dates specified by the Company for the delivery of Goods are intended to be an estimate. If no dates are specified, delivery shall be within a reasonable time.
3.2 Subject to the other provisions of these conditions, the Company shall not be liable for any direct, indirect or consequential loss, caused directly or indirectly by any delay in the delivery of the Goods, nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
3.3 If for any reason the Buyer fails to accept delivery of any of the Goods or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3.4 The Buyer shall provide at its expense adequate and appropriate equipment and manual labour for unloading the Goods.
3.5 If the Company delivers to the Buyer a quantity of Goods that is less than the quantity specified in the Contract, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the shortfall and shall pay for such goods at the pro rata Contract rate. The Buyer shall notify the Company of such short delivery within ten days of receipt of the Goods.
3.6 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
4.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
4.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within ten days of the date when the Goods would in the ordinary course of events have been received.
4.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
5.1 The Goods are at the risk of the Buyer from the time of delivery.
5.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are, or which become due to the Company from the Buyer on any account.
5.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
5.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
(b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
5.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(c) the Buyer encumbers or in any way charges any of the Goods.
5.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
5.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
5.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
5.9 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 5 shall remain in effect.
6.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery.
6.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
7.1 Subject to condition 7.4, payment of the price for the Goods is due in pounds sterling 30 days from the invoice date, or when the Goods are delivered or deemed to have been delivered for account Customers and cleared funds before dispatch of Goods for pro-forma invoice based Customers.
7.2 Time for payment shall be of the essence.
7.3 No payment shall be deemed to have been received until the Company has received cleared funds.
7.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
7.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
7.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Company shall be entitled to suspend or withhold further deliveries pending receipt of the overdue payment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
8. QUALITY / WARRANTY
8.1 The Company reserves the right to modify any design specification where this is intended to improve the Goods. In the event of Goods thus modified being supplied against existing orders, any price increases involved will not be applicable
8.2 The Company warrants that (subject to the other provisions of these conditions) upon delivery, and for a period of 12 months from the date of delivery, the Goods shall:
(a) be of satisfactory quality within the meaning of the Consumer Rights Act 2015;
(b) be reasonably fit for the purpose.
8.3 The Company shall not be liable for a breach of the warranties in condition 8.4 unless:
(a) the Buyer gives written notice of the defect to the Company within ten days of the time when the Buyer discovers or ought to have discovered the defect; and
(b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and 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 for the examination to take place there.
8.4 The Company shall not be liable for a breach of the warranties in condition 8.4 if:
(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of the Company.
8.5 Subject to condition 8.5 and condition 8.6, if any of the Goods do not conform with the warranties in condition 8.4 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate.
8.6 If the Company complies with condition 8.7 it shall have no further liability for a breach of the warranties in condition 8.4 in respect of such Goods.
8.7 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 12-month period.
8.8 The company warrant their products to the original Buyer only. All Goods are manufactured to the highest standards and a limited lifetime guarantee covers any defects in manufacture.
8.9 We warrant our Goods against defects in workmanship, materials, or operation, subject of course to ordinary wear and tear. However, we do not warrant against defects due to improper installation or failure to exercise normal maintenance, nor against the consequence of uses for which are products were not designed.
8.10 Product problems attributed to abuse, misuse, improper installation, improper maintenance, hard water, water born debris or accidental damage are not covered by this warranty. No replacements or repairs will be made under such circumstances except at the Buyers expense.
8.11 Liability under all warranties expressed or implied is limited to replacement of defective Goods only.
8.12 Thermostatic shower valves carry a 12-month warranty on the cartridge
9.1 No Goods may be returned without the Company’s prior written consent. All requests must be submitted in writing together with the reason for returns and the invoice numbers the items were originally supplied under. If approved, the Buyer will be issued with a “Return Goods Authorisation” (RGA) form, which must be filled out and attached to the package for the return shipment.
9.2 Any returns requested for reasons other than defects or errors will be subject to a minimum of 35% re-stocking charge; this percentage may be subject to increase upon inspection of the Goods on receipt and any credit will be issued thereafter.
9.3 Freight costs for returned merchandise must be paid by the sender and the package insured for full replacement cost.
9.4 Special order goods will not be accepted for return.
9.5 Goods held for over 60 days from the date of shipment without an RGA request will not be accepted for return. Any merchandise returned that is not defective must be in re-sale condition, in original packaging and is subject to inspection for this purpose.
10. LIMITATION OF LIABILITY
10.1 Subject to condition 3, condition 4 and condition 8, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by the Consumer Rights Act 2015) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.2 and condition 10.3:
(a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
(b) the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11.1 The Company may assign the Contract or any part of it to any person, firm or company.
11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
12. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 180 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
13.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
13.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
14.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first-class post, fax or e-mail:
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
(b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
14.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first-class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax or e-mail on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.