The Buyer's attention is particularly drawn to the provisions of Condition 10.4
1.1 In these conditions:-
“Buyer” means any person, body of persons, firm of company whose order for the Goods is accepted by the Seller;
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Buyer and the Seller;
“Contract” means the contract for the purchase and sale of the Goods;
“Goods” means any janitorial products (including but not limited to hand-drying machines, hand towels and chemicals) or decorating materials and other similar goods or services (including any instalment of the Goods or any parts for them) which the Seller is to supply in accordance with these Conditions;
“Seller” means Needlers LTD (company number 5536210) whose registered office is Reldeen House, Wyke Way, Melton Buisness Park, Melton, HU14 3BQ
“Writing” includes telex, cable, facsimile transmission and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. BASIS OF THE SALE
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any order of the Buyer (whether oral or in writing) which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 A quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or revise a quotation at any time prior to the Seller’s acceptance of the Buyer’s order.
2.4 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed. Nothing in this Condition shall exclude or limit the Seller's liability for fraudulent misrepresentation.
2.5 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed. Nothing in this Condition shall exclude the Seller's liability for death or personal injury caused by negligence.
2.6 The description illustrations and prices contained in the Seller’s catalogues price lists and other advertising materials are intended to present a general idea of the Goods described in them and shall not form part of the Contract. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. ORDERS AND SPECIFICATIONS
3.1 An order submitted by the Buyer (including telephone orders) shall be deemed to be accepted by the Seller upon receipt of such order by the Seller or its authorised director or employee provided always that the Seller shall be entitled to reject the order by sending a notice in Writing to the Buyer within one working day after receipt by the Seller of that order.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Buyer’s order. Unless otherwise stated all prices quoted shall be deemed to be withdrawn 30 days after the date of quotation.
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer‘s specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages charges and expenses incurred by the Seller as a result of cancellation.
4. PRICE OF THE GOODS
4.1 The price of the Goods shall be the Seller’s quoted price, or where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any significant increase in the costs of material or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Unless the Seller notifies the Buyer otherwise all prices are given by the Seller inclusive of delivery. Where the Seller agrees to deliver the Goods outside of its normal delivery area the Buyer shall be liable to pay an additional charge for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax which the Buyer shall be additionally liable to pay to the Seller.
4.5 The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods within 30 days of the end of the month following the date of the Seller’s invoice (or otherwise as agreed in writing by Needlers Ltd), notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 No payment shall be deemed to have been received until the Seller has received cleared funds.
5.4 If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:-
5.4.1 cancel the Contract or suspend any further deliveries to the Buyer;
5.4.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.4.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 3 per cent per annum above National Westminster Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.5 The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
5.6 The seller reserves the right to claim any expenses occurred in the collection of the unpaid overdue amount.
5.7 Any amount due by the Buyer to the Seller under the Contract shall be payable in full without any compensation set off or counterclaim.
6.1 If so agreed between the Seller and the Buyer delivery of the Goods shall be made by the Seller delivering the Goods to the premises specified by the Buyer. Otherwise the Buyer will collect the Goods at the Seller’s premises in which case the Buyer shall collect the Goods within 5 days of the Seller giving the Buyer notice that the Goods are ready for collection.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller‘s reasonable control or the Buyer‘s fault, and the Seller is accordingly liable to the Buyer, the Seller‘s liability 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.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage, the Goods will be deemed to have been delivered and risk in the Goods will pass to the Buyer.
6.6 If the Seller delivers to the Buyer a quantity of Goods of up to 5% more or less than the quantity ordered by the Seller, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such Goods as the pro rata Contract rate.
6.7 Any receipt obtained by the Seller from the Buyer or its employee or agent accepting or taking delivery of the Goods shall be conclusive evidence of delivery in satisfactory condition by the Seller to the Buyer of the Goods or such part thereof as is indicated by the receipt.
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:-
7.1.1 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods; or
7.1.2 in the case of Goods delivered at the Seller‘s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection.
8. RETENTION OF TITLE
8.1 Ownership of the Goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of:
8.1.1 the Goods; and
8.1.2 all other sums which are or which become due to the Seller from the Buyer on any account.
8.2 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
8.2.1 hold the Goods on a fiduciary basis as the Seller's bailee;
8.2.2 store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller's property;
8.2.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
8.2.4 maintain the Goods in satisfactory condition and keep them insured on the Seller's behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller.
8.3 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
8.3.1 any sale shall be effected in the ordinary course of the Buyer's business at full market value; and
8.3.2 any such sale shall be a sale of the Seller's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale.
8.4 The Buyer's right to possession of the Goods shall terminate immediately if:
8.4.1 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
8.4.2 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 Seller 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
(a) the Buyer encumbers or in any way charges any of the Goods.
8.5 The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
8.6 The Buyer grants the Seller, 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.
8.7 Where the Seller 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 Seller to the Buyer in the order in which they were invoiced to the Buyer.
8.8 On termination of the Contract, howsoever caused, the Seller's (but not the Buyer's) rights contained in this Condition 8 shall remain in effect.
9.1 Where the Seller is not the manufacturer of the Goods, the Seller shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller.
9.2 The Seller warrants that (subject to the other provisions of these Conditions) upon delivery, and for a period of 6 months from the date of delivery, the Goods shall:
9.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
9.2.2 be reasonably fit for purpose.
9.3 The Seller shall not be liable for a breach of any of the warranties in Condition 9.2 unless:
9.3.1 the Buyer gives written notice of the defect to the Seller, within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection), within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and
9.3.2 the Seller is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller's place of business at the Buyer's cost for the examination to take place there.
9.4 The Seller shall not be liable for a breach of any of the warranties in Condition 9.2 if:
9.4.1 the Buyer makes any further use of such Goods after giving such notice; or
9.4.2 the defect arises because the Buyer failed to follow the Seller'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
9.4.3 damage has been sustained in transit after delivery of the Goods to the Buyer or its agents; or
9.4.4 the defect is caused by wear and tear, accident or misuse, improper operation of neglect or if any adjustment, alteration or other work has been performed on the Goods by any person other than the Seller.
9.5 Subject to Condition 9.3 and Condition 9.4, if any of the Goods do not conform with any of the warranties in Condition 9.2 the Seller 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 provided that, if the Seller so requests, the Buyer shall, at the Buyer's expense, return the Goods or the part of such Goods which is defective to the Seller.
9.6 If the Seller complies with Condition 9.5 it shall have no further liability for a breach of any of the warranties in Condition 9.2 in respect of such Goods.
9.7 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions.
10. LIMITATION OF LIABILITY
10.1 Subject to Condition 6 and Condition 9, the following provisions set out the entire financial liability of the Seller (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 section 12 of the Sale of Goods Act 1979) 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 Seller:
(a) for death or personal injury caused by the Seller's negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Seller 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 Seller'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 £1,000,000; and
(b) the Seller 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. FORCE MAJEURE
11.1 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods. If the delay or failure was due to any cause beyond the Seller‘s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller‘s reasonable control:-
11.1.1 act of God, explosion, flood, tempest, fire or accident;
11.1.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
11.1.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
11.1.4 import or export regulations or embargoes;
11.1.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
11.1.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
11.1.7 power failure or breakdown in machinery.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All copyright, patent, trade secret and other proprietary and intellectual property rights in the Goods, and information which the Seller may provide to the Buyer or its agents in relation to the Goods shall (as between the parties) at all times remain vested in the Seller or the manufacturer of the Goods, and the Buyer shall not acquire any intellectual property rights or licence relating to the Goods and may not copy or imitate the Goods.
13. INDEMNITY AGAINST THIRD PARTY INTELLECTUAL PROPERTY RIGHT CLAIMS
13.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:-
13.1.1 the Seller is given full control of any proceedings or negotiations in connection with any such claim;
13.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
13.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);
13.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and the indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
13.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
13.1.6 without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this Condition.
14. SELLER’S RIGHT OF TERMINATION
14.1 This Condition applies if:-
14.1.1 the Buyer fails to observe or perform any of its obligations under the Contract and fails to remedy such breach (if remediable) within 10 working days of the Seller’s notice to do so;
14.1.2 the Buyer shall refuse to take delivery or collect any of the Goods in accordance with the terms of the Contract;
14.1.3 an encumbrancer takes possession of or a trustee or administrative or other receiver or similar officer is appointed in respect of all or any material part of the business or assets of the Buyer or distress or any form of execution is levied or enforced upon or sued out against any such assets and is not discharged within seven days of being levied, enforced or sued out;
14.1.4 the Buyer is deemed unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or suspends or threatens to suspend making payments (whether of principal or interest) with respect to all or any class of its debts;
14.1.5 the Buyer convenes a meeting of its creditors or prepares or makes any arrangement or composition with, or any assignment for the benefit of, its creditors or a petition is presented or other steps are taken for making an administration order or a receiving order in bankruptcy against or for winding up of the Buyer (other than for the purposes of and following by a reconstruction previously approved in Writing by the Seller), unless during or following such reconstruction the Buyer becomes or is declared to be insolvent;
14.1.6 the Buyer ceases, or threatens to cease, to carry on business; or
14.1.7 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
14.2 If this Condition applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
14.3 The Buyer shall notify the Seller forthwith of the happening of any of the events referred to in Conditions 14.1.1 to 14.1.7.
15.1 The Buyer shall not disclose, and shall use its best endeavours to prevent the disclosure by any of its employees or agent of, any confidential information about the Seller, its employees or agents, its business or the Goods which may come into its possession or knowledge as a result of the Contract.
15.2 The provisions of Condition 15.1 shall survive any termination of the Contract.
16.1 The Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Seller.
16.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice and shall be deemed to have been received either 48 hours after posting (in the case of first class, recorded delivery or registered post) or 12 hours after despatch (in the case of telex or facsimile) or immediately (in the case of personal delivery).
16.3 No express or implied waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver or forfeiture of any subsequent breach of the same or any other provision.
16.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
16.5 The Buyer shall not be entitled to assign its rights or transfer its obligations under the Contract in whole or in part without the prior written consent of the Seller.
17. GOVERNING LAW
17.1 The Contract shall be governed by and construed in accordance with the Laws of England and the parties submit to the exclusive jurisdiction of the English courts.