1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Force Majeure Event: has the meaning given in clause 13.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order for the Goods, as set out in the Supplier’s standard order form.
Supplier: Briarwood Products Limited (company number 02900287) of Briarwood Business Park, Commerce Way, Walrow Industrial Estate, Highbridge, Somerset, TA9 4AG.
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier either:
(a) issues written acceptance of the Order; or
(b) confirms that the Goods are ready for delivery,
at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 14 days from its date of issue.
3.1 The Goods are as described in the Supplier’s catalogues and promotional literature.
3.2 The Supplier reserves the right to amend the specification of any Goods if required by any applicable statutory or regulatory requirements.
3.3 The Customer acknowledges and accepts that the Supplier is unable to fix a date for readiness of the Goods. Goods which are in stock are normally ready for delivery within 5 Business Days of the date of the Order but this is an estimate only.
4.1 The Order shall specify whether:
(a) the Supplier shall arrange shipping and delivery of the Goods; or
(b) the Customer (or its nominated third party) shall collect the Goods from the Supplier’s premises.
4.2 If the Order specifies that the Supplier shall deliver the Goods, it shall do so to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 If the Order specifies that the Customer shall collect the Goods, it shall do so from the Supplier’s premises (stated in clause 1.1 above) or such other location as may be advised by the Supplier prior to collection (Collection Location) within 5 Business Days of the Supplier notifying the Customer that the Goods are ready.
4.4 Where the Supplier is responsible for delivery of the Goods, delivery shall be completed on the Goods’ arrival at the Delivery Location. Where the Customer is responsible for collection/shipping, delivery shall be completed on the Goods’ removal from the Collection Location.
4.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any reasonable delay in delivery, or any delay in delivery of the Goods that 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.
4.6 If the Supplier fails to deliver the Goods at all, 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.
4.7 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.
4.8 The Customer shall not be entitled to reject the Goods if the Supplier delivers less than the quantity of Goods ordered. The Supplier shall, as soon as reasonably practicable, deliver such additional Goods as necessary to remedy the shortfall, which shall be the Customer’s sole and exclusive remedy for delivery of less than the quantity of Goods ordered.
4.9 If the Customer fails to take delivery of the Goods on their arrival at the Delivery Location, or in the case of collection, within the time period specified in clause 4.3 then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the relevant day (either the day of attempted delivery or, in the case of collection, the fifth Business Day following the day on which the Supplier notified the Customer that the Goods were ready); and
(b) the Supplier shall store the Goods until delivery/collection takes place, and charge the Customer for all related costs and expenses (including insurance).
5. Export & import
5.1 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 5 shall apply notwithstanding any other provision of these Conditions.
5.2 The Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Supplier, the Customer shall make those licences and consents available to the Supplier prior to the relevant shipment.
5.3 The Customer is wholly responsible for ensuring that the Goods are importable and useable in the destination country and that the Goods meet all statutory, regulatory and other legal requirements in that country.
5.4 The Customer is responsible for complying with any legislation or regulations governing the importation of the Goods to the destination country and for the payment of any duties and costs due as a result of such importation.
6.1 The Supplier warrants that, on delivery, the Goods shall conform in all material respects with their description and be free from material defects in design, material and workmanship (Warranty). Save for any written product guarantee issued by the Supplier (which shall be subject to these Conditions), all other warranties or conditions (whether express or implied), including those in sections 13 to 15 of the Sale of Goods Act 1979 as to quality, condition, description or fitness for purpose, (whether statutory or otherwise) other than those expressly set out in these Conditions are excluded from the Contract to the fullest extent permitted by law.
6.2 If, on delivery, the Goods do not comply with the Warranty, or there is any shortage in the quantity of Goods delivered, the Customer must give notice in writing to the Supplier within 7 days of delivery, following which the Supplier shall use all reasonable endeavours to remedy the defect(s), including by the provision of replacement Goods.
6.3 The Supplier shall not be liable for the Goods’ failure to comply with the Warranty (or any other written guarantee) in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 6.1;
(b) the defect arises due to damage caused following delivery of the Goods;
(c) the defect arises because the Customer failed to follow the Supplier’s instructions as to the storage, installation, fitting, use and/or maintenance of the Goods or (if there are none) good trade practice regarding the same; or
(d) the Customer alters or attempts to repair such Goods without the written consent of the Supplier.
6.4 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the Warranty set out in clause 6.1 or other written guarantee.
6.5 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
7. Title and risk
7.1 The risk in the Goods shall pass to the Customer upon delivery of the Goods to the Delivery Location or upon loading of the Goods for removal at the Collection Location.
7.2 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 and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) not remove, deface or obscure any identifying mark on or relating to the Goods; and
(b) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.
7.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 10.2, then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time:
(a) require the Customer to deliver up all Goods in its possession; and
(b) 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.
8. Price and payment
8.1 The price of the Goods shall be the price set out in the Order.
8.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to put the Order on hold for any period of time, change the delivery date(s), quantities or types of Goods ordered, or the specification of such Goods;
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions;
(d) any request by the Customer to alter the Delivery Location after the Order is placed; or
(e) the Delivery Location being unsuitable for the vehicle to be used to deliver the Goods.
8.3 Unless otherwise stated, the price set out in the Order is inclusive of the costs and charges of packaging and transport of the Goods (where provided by the Supplier).
8.4 The Supplier may invoice the Customer for the Goods on notifying the Customer that the Goods are ready for collection or delivery.
8.5 Unless otherwise specified in the Order, the Customer shall pay the invoice in full and in cleared funds within 30 days of the end of the month following the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
8.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
9.1 The price of the Goods and all other amounts payable under the Contract are exclusive of value added tax, any similar sales tax or any tax that replaces such sales taxes. Any such tax payable in relation to any such amounts shall be paid in addition to those amounts. If the Customer is required under any applicable law to withhold or deduct any amount from the payments due to the Supplier, the Customer shall increase the sum it pays to the Supplier by the amount necessary to leave the Supplier with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
9.2 Where applicable, the Customer must provide the Supplier with its valid VAT number and any other details reasonably required by the Supplier for VAT purposes.
9.3 Where the Customer collects or arranges its own shipping for export of the Goods to another country and the supply is a potentially zero-rated supply, the Supplier may require the Customer to pay the VAT and/or other sales taxes due on the Goods as a deposit. This deposit will be refunded to the Customer upon receipt by the Supplier, within 3 months of dispatch of the Goods, of satisfactory documentation proving that the Goods have been exported and (where applicable) have arrived at the destination country.
10. Termination and suspension
10.1 If the Customer becomes subject to any of the events listed in clause 10.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
10.2 For the purposes of clause 10.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(c) (being a company) an administrator or administrative receiver is appointed to it;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) an incumbrancer takes possession, or a receiver, manager or administrative receiver is appointed, of the whole or any part of the Customer’s assets;
(f) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2(a) to clause 10.2(e) (inclusive);
(g) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(h) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(i) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
10.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 10.2(a) to clause 10.2(i), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
10.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.
10.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
10.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
11. Limitation of liability
11.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful, under English law, for the Supplier to exclude or restrict liability.
11.2 Subject to clause 11.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid by the Customer for the Goods.
11.3 The Supplier shall not be liable for any losses arising from the Customer’s subsequent use or misuse of the Goods including (without limitation):
(a) fair wear and tear;
(b) wilful damage;
(c) improper fitting or installation of the Goods;
(d) the Customer’s negligence, or that of its agents or employees, or any failure to follow the Supplier’s instructions as to use of the Goods;
(e) any alteration or repair of the Goods by any manufacturing process or otherwise.
12.1 The Supplier may, in its sole discretion, agree to accept returns of any Goods which are no longer required by the Customer, provided that the Customer contacts the Supplier via 01278 448489 or firstname.lastname@example.org within 30 days of delivery of such Goods, providing details of the Order and the quantity it wishes to return.
12.2 Where the Supplier accepts the return of Goods, it shall notify the Customer and provide it with instructions as to the return of the Goods. The Customer shall be responsible for returning the Goods to the Supplier, including all costs and expenses arising therefrom. The Customer shall be liable for any loss of or damage to Goods prior to their arrival at the Supplier’s nominated premises.
12.3 Where the Supplier agrees to collect Goods to be returned, it shall charge the Customer a carriage fee.
12.4 The Supplier may charge a restocking fee for the return of Goods, which shall either be payable by the Customer in advance or shall be deducted from any refund payable by the Supplier.
12.5 On receipt of the Goods, the Supplier shall assess them and may reject the return of any Goods which are incomplete or damaged. Where applicable, the Supplier shall confirm acceptance of the return and process any refund payable to the Customer within 30 days of receipt of the Goods.
12.6 Painted Goods shall be refunded at the standard grey pricing for such Goods. No refund shall be made of any costs or charges in respect of the painting.
13. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind of the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, or default of suppliers or subcontractors.
14.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, airmail, or fax.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; if delivered by airmail, either at 9.00am on the fifth Business Day after posting, or on the date and at the time that the delivery receipt is signed; or, if sent by fax, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
14.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
14.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
14.7 Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
14.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).