GENERAL TERMS AND CONDITIONS:
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 as amended from time to time in accordance with clause 10.5;
“Contract” the contract between the Supplier and the Customer for the sale and purchase of the Goods & Services 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 8.6.1;
“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 Customer’s purchase order form;
“Specification” any specification for the Goods issued in writing by the Customer;
“Supplier” Professional Safety Services (UK) Limited, Units 6A & 6B, Clay Pit Lane, Bar Lane Industrial Estate, Roecliffe, YO51 9FS (registered in England and Wales with company number 06341353);
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors or permitted assigns.
1.2.3 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.
1.2.4 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.
1.2.5 A reference to writing or written includes faxes and e-mails.
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 and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 Where the Supplier and the Customer execute a pro-forma invoice referred to in clause 7.2, such pro-forma invoice shall be deemed to be a purchase order from the Customer accepted by the Supplier which shall constitute the Contract.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any illustrations contained in the Supplier’s catalogues or brochures or on the Website 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.
2.7 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of twenty Business Days from its date of issue.
3.1 The Goods are described on the Website.
3.2 The Supplier reserves the right to amend the description of the Goods if required by any applicable statutory or regulatory requirements.
4.1 The Supplier shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2 if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2 Where the Order specifies that the Customer shall collect the Goods from the Supplier’s premises at Unit 6A & 6B, Clay Pit Lane, Bar Lane Industrial Estate, Roecliffe, YO51 9FS, the Customer shall collect the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready.
4.3 Where the Order specifies that delivery within the United Kingdom will be to a location other than the Supplier’s premises the Supplier shall deliver the Goods to the location set out in the Order. In such circumstances the Supplier will arrange for carriage and packing only and will not insure the Goods after they have left the Supplier’s premises. Insurance in such circumstances will be the responsibility of the Customer.
4.4 Where the Order specifies that delivery will be to a destination outside the United Kingdom then the Supplier will deliver the Goods to a named destination on the basis of carriage and packing only and will not move the Goods after they have left the Supplier’s premises. Insurance in such circumstances will be the responsibility of the Customer. Supplier will arrange insurance at an additional cost to the Customer if requested by the Customer in writing. The Supplier shall be responsible for the payment of any duty chargers in respect of such deliveries.
4.5 Delivery of the Goods shall be completed in the case of delivery pursuant to clause 4.2 on the completion of loading of the Goods at the Supplier’s Premises and in the case of delivery pursuant to clause 4.3 and clause 4.4 on the Goods arrival at the Delivery location.
4.6 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 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.
4.7 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.
4.8 In the case of delivery pursuant to clause 4.2 if the Customer fails to take delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, 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:
4.8.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the fourth Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
4.8.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.9 In the case of delivery pursuant to clause 4.2 if ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods.
4.10 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.
4.11 All goods must be examined immediately upon arrival and any claims for breakages or shortages must be notified in writing to the carrier and to the company within 3 days of arrival.
4.12 Notification of non-delivery must be made within 7 days of the date of the company’s invoice.
4.13 The company is under no obligation to accept goods returned by the purchaser and will do so only on terms to be agreed in writing in each individual case. If agreement is reached a charge may be made to cover the cost of administrating, inspection and restocking.
5.1 The Supplier warranties that are in respect of the Goods are referred to on its website www.prosafetyservices.co.uk
5.2 The Supplier shall not be liable for Goods’ failure to comply with the warranties referred to in clause 5 in any of the following events:
5.2.1 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.2.2 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
5.2.3 the Customer alters or repairs such Goods without the written consent of the Supplier;
5.2.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.2.5 the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
5.2.6 the Goods were supplied in accordance with requirements given by the Customer which were inaccurate in any respect.
5.3 Except as provided in this clause 4.10, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranties referred to in clause 5.
5.4 Except as referred to in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.5 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer:
6.1.1 in respect of delivery pursuant to clause 4.2 on completion of delivery;
6.1.2 in respect of delivery pursuant to clause 4.3 when the Goods have left the Supplier’s premises; and
6.1.3 in respect of delivery pursuant to clause 4.4 when the Goods have left the Supplier’s premises unless the Supplier has arranged insurance (as referred to in clause 4.4) when the risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 hold the Goods on a fiduciary basis as the Supplier’s bailee;
6.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.5 notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.1; and
6.3.6 give the Supplier such information relating to the Goods as the Supplier may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.1, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods 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.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
7.2 The Supplier may, by giving notice to the Customer at any time up to fifteen Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 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);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods is exclusive of the costs and charges of packaging and transport of the Goods, which shall be invoiced to the Customer. The price of the Goods is also exclusive of insurance, which shall be invoiced to the Customer if the Supplier has arranged insurance (as referred to in clause 4.4).
7.4 The price of the Goods is exclusive of amounts in respect of value added tax (“VAT”). 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 Goods.
7.5 The Supplier may request that the Customer pay for the Goods prior to delivery. In such circumstances the Supplier will issue a pro-forma invoice to the Customer. The Customer will pay the pro-forma invoice amount within 10 days of receipt of such invoice. Upon receipt of payment the Supplier will issue the invoice to the Customer in respect of the payment and confirm receipt of the payment. Where the Supplier has issued a pro-forma invoice the provisions of clause 7.3 and the first sentence of 7.8 shall not apply.
7.6 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.7 The Customer shall pay the invoice in full by:
7.7.1 in respect of deliveries in the United Kingdom within 60 days of invoice date, subject to credit approval; or
7.7.2 in respect of deliveries outside the United Kingdom within the number of days specified on the Supplier’s invoice, subject to credit approval.
Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.8 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (“due date”), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.9 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. 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.
8. CUSTOMER’S INSOLVENCY OR INCAPACITY
8.1 If the Customer becomes subject to any of the events listed in clause 8.12, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
8.2 For the purposes of clause 8, the relevant events are:
8.2.1 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) 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;
8.2.2 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place 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;
8.2.3 (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;
8.2.4 (being an individual) the Customer is the subject of a bankruptcy petition or order;
8.2.5 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen days;
8.2.6 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
8.2.7 (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
8.2.8 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
8.2.9 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 8.2 to clause 8.2.7 (inclusive);
8.2.10 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
8.2.11 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
8.2.12 (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.
8.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which Professional Safety Service (UK) Ltd Contract v1 expressly or by implication survive termination of the Contract shall continue in full force and effect.
8.4 LIMITATION OF LIABILITY
8.5 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
8.5.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
8.5.2 fraud or fraudulent misrepresentation;
8.5.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
8.5.4 defective products under the Consumer Protection Act 1987.
8.6 Subject to clause 8.4:
8.6.1 the Supplier shall not 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
8.6.2 the Supplier’s total liability to the Customer in respect of any event or series of connected events arising under or in connection with this Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed £10,000.00 OR 5 x the price of the Goods.
9. 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, or default of suppliers or subcontractors.
10.1 Assignment and subcontracting.
10.1.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
10.1.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
10.2.1 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, recorded delivery, commercial courier, fax or e-mail.
10.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 10.2; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business