Interpretation The following definitions and rules of interpretation apply in these Conditions.
Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.2 .
Conditions: these terms and conditions as amended from time to time in accordance with clause 13.5.
Contract: the contract between the Supplier and the Customer for the supply of Goods in accordance with these Conditions.
Customer: the person, firm, company or other organisation who purchases Goods from the Supplier.
Delivery Location: has the meaning given in clause 4.1.
Force Majeure Event: has the meaning given to it in clause 12.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans, drawings, assembly or markings that is agreed by the Customer and the Supplier.
Order: the Customer’s order for the supply of Goods.
Supplier: EHRCO Limited registered in England and Wales with company number 02671603.
Interpretation:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its successors and permitted assigns.
A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A reference to writing or written includes fax and email.
Basis of contract
The Order constitutes an offer by the Customer to purchase Goods and services in accordance with these Conditions.
The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order or otherwise communicates its acceptance of the Order to the Customer at which point and on which date the Contract shall come into existence (Commencement Date).
Any samples, drawings or advertising issued by the Supplier and any descriptions or illustrations of the Goods contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract nor have any contractual force.
These Conditions apply to each Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
All of these Conditions shall apply to the supply of both Goods and any services which the Supplier may agree to provide to the Customer.
Goods
The Goods are described in the Goods Specification save that:
unless the Customer specifies a particular length for any Goods, the Supplier reserves the right to supply Goods of the length of the nearest available roll thereof to the length ordered by the Customer (which may be shorter or longer than the ordered length) and to charge for the length actually supplied; and
the Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement or (where the Customer specifies a particular brand of Goods) to supply an alternative brand (provided that the alternative is of at least the same quality, specification and dimensions as the brand ordered by the Customer).
Delivery of Goods
Where the Supplier is to deliver the Goods, it will deliver them to the location set out in the Order or such other location as the parties may agree at any time after the Commencement Date. Where the Customer is to collect the Goods, it shall do so from the Supplier’s premises at Peartree Business Park Dudley or from such other location as may be agreed with the Customer before delivery within three Business Days of the Supplier notifying the Customer that the Goods are ready for collection (such location being in any such case the Delivery Location).
Delivery of the Goods shall be completed on the completion of loading (where the Customer collects the Goods) or (where Supplier delivers the Goods) when they arrive at the Delivery Location, but before they are unloaded from the delivery vehicle.
Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence.
If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery or collection (as the case may be) the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
Any error, shortage in delivery quantities or damage to the Goods must be notified to the Supplier in writing within 14 days of delivery (or non-delivery within seven days of confirmed despatch.
Quality of Goods
The Supplier warrants that on delivery, and for a period of 15 months from the date of delivery or (if earlier) 12 months from the date are first used or put into service (warranty period), the Goods shall:
conform in all material respects to the Goods Specification;
be free from material defects in design, material and workmanship;
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
be fit for any purpose held out by the Supplier for them.
Subject to clause 5.3, if:
the Customer gives notice in writing to the Supplier during the warranty period and within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
the Supplier is given a reasonable opportunity of examining such Goods; and
the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business,
The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 if:
the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, fitting, commissioning, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
the Customer alters or repairs such Goods without the written consent of the Supplier;
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards; or
the Goods are used for any purpose other than that set out in the Goods Specification, or for which they are not designed or for which they are not customarily supplied.
Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
Title and risk
The risk in the Goods shall pass to the Customer on completion of delivery in accordance with clause 4.2.
Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods.
Until title to the Goods has passed to the Customer, the Customer shall:
store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and
maintain the Goods in satisfactory condition.
Subject to this clause 6.4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. At any time before title to the Goods passes to the Customer, the Supplier may:
by notice in writing, terminate the Customer’s right to resell the Goods or use them in the ordinary course of its business; and
require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
Charges and payment
The price for Goods shall be the price set out or referred to in the Contract and shall be exclusive of any delivery or shipment costs which the Supplier may charge for separately in accordance with its usual delivery and shipment procedures.
The Supplier reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other costs);
any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification;
delivery or shipment costs that are outside the Supplier’s usual free delivery or shipment policies or which are due to the unusual nature of the Goods or their particular size or dimensions; or
any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
The Supplier shall invoice the Customer on or at any time after collection or completion of delivery. The Customer shall pay each invoice submitted by the Supplier:
within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed by it in writing to the Customer; and
in full and in cleared funds to the Supplier’s bank account, and
All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 10, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.5 will accrue each day at 6% a year above the Bank of England’s base rate from time to time, but at 6% a year for any period when that base rate is below 6%.
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
Where the Supplier offers the Customer a discount against its normal charges for the relevant Goods, such discount shall be reduced by 10% for each day after the due date for payment of the relevant invoice in respect of which the Supplier has not received payment in full of the price stated in the Contract by such due date.
Data protection
The Supplier’s GDPR policy shall apply in relation to any data passing from the Customer to the Supplier (a copy of which is available from the Supplier on request).
Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange in respect of its potential liability under any Contract and the Customer is responsible for making its own arrangements for the insurance of any loss in respect of which the Supplier excludes or restricts its liability under this clause 9.
The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation;
breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
defective products under the Consumer Protection Act 1987.
The Supplier’s total liability to the Customer in respect of any Contract shall not exceed the total of all sums paid or payable by the Customer under the relevant Contract in respect of goods and services actually supplied by the Supplier.
The Supplier shall have no liability for the following types of loss:
loss of profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of use or corruption of software, data or information;
loss of or damage to goodwill; and
indirect or consequential loss.
Save as provided in these Conditions all terms implied by legislation are, to the fullest extent permitted by law, excluded from the Contract.
This clause 9 shall survive termination of the Contract.
Termination
Without affecting any other right or remedy available to it, either party may terminate any Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
Without affecting any other right or remedy available to it, the Supplier may suspend all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment.
Consequences of termination
On termination of the Contract:
the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
the Customer shall return all Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them.
Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
Force majeure
General
Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
Entire agreement.
Each Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into any Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract (save that nothing in this clause shall limit or exclude any liability for fraud).
Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
