WH KEMP (ELECTRICS) LIMITED
CONDITIONS OF SALE
1 Sales terms Introduction
1.1 In these Conditions:-
- “Buyer” means the person whose order is accepted by the Seller
- “Conditions” means the standard conditions of sale set out in this document and including any special terms and conditions agreed in writing between the Buyer and the Seller
- “Contract” means any contract between the Seller and the Buyer for the purchase and sale of the Goods
- “Goods” means all goods which are supplied to the Buyer by the Seller under any contract between them
- “Seller” means WH Kemp (Electrics) Limited
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 Basis of Sale
2.1 Unless otherwise expressly agreed in writing by the Seller, these Conditions shall govern every sale of Goods made by the Seller to the Buyer to the exclusion of any other terms and conditions.
2.2 A quotation is for estimation purposes only and will only become binding on the Seller if and when the quotation is incorporated into an order which the Seller has accepted in writing.
2.3 The Seller’s employees or agents are not authorised to make any representations or give advice 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 advice or representation which is not so confirmed.
3 Formation of Contract
3.1 The Contract shall be formed when the Buyer’s order is confirmed in writing by the Seller’s authorised representative subject to these Conditions.
3.2 The quantity and description of the Goods shall be as set out or referred to in the Seller’s acceptance of order.
3.3 All description and illustrations contained in any catalogues, price lists, advertising matter and other literature of the Seller are intended merely to present a general idea of the goods described therein and none of them shall form part of the contract.
3.4 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 which do not materially affect the quality or performance of the Goods.
3.5 The Buyer shall indemnify and keep indemnified the Seller fully on demand against any and all losses, damages, costs and expenses incurred by or awarded against the Seller as a result of the carrying out of any work required to be done to the Goods in accordance with the requirements or specifications of the Buyer. The Buyer shall indemnify and hold Seller harmless from and against any suits, liabilities, losses, damages, claims, causes of action and expenses (including legal fees) arising out of or in any manner related to any act, omission, fault or negligence of Buyer, its agents, employees or subcontractors.
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 losses (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.
4.1 The price of the Goods shall be the price quoted in the order accepted by the Seller.
4.2 Written quotations or estimates are valid for 30 days.
4.3 The Seller reserves the right to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to market fluctuations including but not limited to alterations in taxation, changes in legislation or exchange rates and any increase due to change of delivery dates, quantities or specifications of the Goods by the Buyer, special packaging requested by the Buyer or any delay caused by any instructions of the Buyer or the Buyer’s failure to give the Seller adequate information or instructions.
4.4 Unless otherwise agreed in writing, all prices given by the Seller are ex-works the Seller’s warehouse and, where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4.5 The price is exclusive of Value Added Tax which shall be payable by the Buyer.
5.1 Unless otherwise agreed in writing or specified at the time of quotation, where delivery is to be made at the Buyer’s premises the Seller shall be entitled to invoice the Buyer for the price of the Goods, including any transport, packaging and insurance charges (where applicable), on or at any time after delivery of the Goods. Where the Goods are to be collected by the Buyer or where the Goods are to be delivered at the Buyer’s premises and the Buyer fails to take delivery of the Goods the Seller shall be entitled to invoice the Buyer for the price of the Goods including any transport, packaging and insurance charges (where applicable) at any time after the Seller has notified the Buyer that the Goods are ready for collection.
5.2 Unless otherwise agreed in writing signed by both parties the Buyer shall pay the price of
the Goods as invoiced in full within 30 days of the date of the Seller’s invoice.
5.3 If in the opinion of the Seller the credit-worthiness of the Buyer shall have deteriorated prior to delivery or collection the Seller may require full or partial payment of the price prior to delivery or collection or the provision of security for payment by the Buyer in a form acceptable to the Seller.
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 (at its option) be entitled to:-
- 5.4.1 cancel the Contract and/or suspend any further deliveries of the Buyer;
- 5.4.2 charge the Buyer interest (both before and after judgement) on the amount unpaid at the rate of 3% per annum above National Westminster Bank Plc base rate from time to time until payment in full is made.
6.1 Where delivery of the Goods is to be at the Buyer’s premises the delivery shall take place when delivery is made except where the Buyer fails to take delivery of the Goods when delivery will take place when the Seller notifies the Buyer that the Goods are ready for collection. Where delivery is to take place at the Seller’s premises delivery will be effective when the Seller notifies the Buyer that the Goods are ready for collection or delivery. Where the Seller carries Goods for the Buyer the Buyer shall have full responsibility and liability for the unloading of the Goods from the delivery vehicle.
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.
6.3 The Buyer shall be obliged to inspect the Goods at delivery and sign the Sellers advice note on delivery and shall be deemed to have accepted the Goods in all respects unless the advice note is signed and returned with detailed particulars of defects or shortages. Where it is not possible to discover an alleged defect or shortage on delivery the Buyer shall give written notice to the Seller with full details within 3 working days of delivery or sooner if possible.
6.4 If the Seller is satisfied that the Goods have been short delivered in accordance with Condition 6.3 above the Seller shall at its option:-
- 6.4.1 make up any short delivery by despatching to the Buyer such Goods as the Seller is satisfied were not delivered; or
- 6.4.2 allow the Buyer credit in respect thereof.
6.5 Where the Goods are to be delivered in instalments each delivery shall constitute a
separate contract and defective delivery by the Seller of any one or more of the instalments in accordance with these Conditions shall not entitle the Buyer to treat the Contract as a whole as cancelled.
6.6 If the Seller fails to deliver the Goods for any reason (other than any cause specified in Condition 11 or the Buyer’s fault) the Seller’s liability (if any) shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.7 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 then, without prejudice to any other right or remedy available to the Seller, the Seller store the Goods until actual delivery is made and charge the Buyer for the reasonable costs (including handling and insurance) of storage.
6.8 Where delivery of the Goods is suspended as a result of Condition 5.4.1 above the Buyer assumes sole responsibility for the protection insurance and safe storage of those Goods already delivered irrespective of whether title in those Goods has passed to the Buyer.
6.9 For the avoidance of doubt and without prejudice to the generality of the exclusion of liability set out in Condition 9 below the Seller shall not be responsible for any loss damage costs expenses or any other claims of the Buyer or any third party resulting from the suspension of the delivery of the Goods set out in Condition 5.4 above
6.10 The Seller is under no obligation to accept any return of the Goods purported to be made by the Buyer.
The risk of loss and damage to the Goods shall pass to the Buyer immediately on delivery unless the Goods are to be collected by the Buyer when the risk of loss and damage to the Goods shall pass to the Buyer on the Seller notifying the Buyer that the Goods are ready for collection.
8. Property and Retention of Title by Seller
8.1 In spite of delivery having been made the Seller and the Buyer expressly agree that until the Seller has been paid in full including VAT for the goods comprised in any contract between them:-
- 8.1.1 The goods comprised in such contract remain the property of the Seller (although the risk therein passes to the Buyer at the point of delivery);
- 8.1.2 The Buyer shall store the Goods (at no cost to the Seller) separately from all other Goods in its possession and marked in such a way that they are clearly identified as the Seller’s property;
- 8.1.3 The Buyer shall hold the Goods on a fiduciary basis as bailee for the Seller;
- 8.1.4 The Seller may recover goods from the Buyer and the Buyer grants to the Seller an irrevocable licence to enter any vehicles or premises owned, occupied or controlled by the Buyer where Goods are situated to repossess and remove delivered Goods the property of which has remained in the Seller;
- 8.1.5 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller;
- 8.1.6 The Buyer shall insure and keep insured the Goods to their full price against “all risks” until the date that the property in the Goods passes from the Seller;
8.2 The Buyer has the right to dispose of the goods in the course of his business for the account of the Seller (but any warranties, conditions or representations given or made by the Buyer to any third party shall not be binding on the Seller who shall be indemnified by the Buyer with respect thereto) and to pass good title to the goods to his customer being a bona-fide purchaser for value without notice of the Seller’s rights.
8.3 In the event of disposal by the Buyer under the preceding sub-condition the Buyer must account to the Seller for the proceeds, to the extent of the amount due to the Seller. The Seller also has the right to recover the Buyer’s price directly from the Buyer’s customer to the extent unpaid.
8.4 If the Buyer incorporates the goods into other products (with the addition of his goods or those of others) or uses such goods as material for other products (with or without such addition) the property in those other products is upon such incorporation or use transferred to the Seller and the Buyer as bailee and the Buyer will store the same for the Seller in a proper manner without charge to the Seller. In the event of such incorporation or use as is envisaged by this sub-condition the provisions of sub-conditions 8.1.4, 8.2 and 8.3 of this sub-condition shall apply, mutatis mutandis, to those other products in place of the goods.
9 Storage of Goods
9.1 The Buyer may from time to time agree to provide a stock of Goods or products ancillary thereto (“Products”) at the Buyer’s premises and where this forms part of the agreement between the parties such Goods or Products shall be stored in accordance with the provisions of Conditions 6, 7 and 8 above.
9.2 Notwithstanding that the property in the Goods remains in the Seller and in addition to the obligations contained in Conditions 6, 7 and 8 above the Buyer hereby undertakes to keep the Goods or Products stored in an area agreed with and approved by the Seller (“the Storage Area”) and to keep them secure, insured, separate and distinguishable from other goods and shall not remove the Goods
or Products from the Storage Area unless prior consent to such removal has been given by the Buyer.
9.3 Where any of the Goods or Products become lost, misplaced, stolen, damaged or their value affected in any other way whilst being in the Storage Area or otherwise within the Buyer’s possession or control the Buyer will indemnity the Seller on a full basis against any such loss, misplacement, theft, damage or reduction in value.
9.4 Where loss, misplacement, theft or damage to the Goods or Products occurs the Buyer may elect to repair or replace the affected Goods or Products and where such repair or replacement is undertaken the Buyer shall indemnify on a full basis the Seller for the value of all its time, efforts, costs, expenses and disbursements incurred in undertaking the repair or replacement.
10.1 Subject to the conditions and provisions set out below the Seller warrants that the Goods will correspond with the Seller’s specification at the time of delivery and will be free from defects in material and workmanship for a period of 30 days from the date of delivery.
10.2 The Seller shall be under no liability in respect of any defect in the Goods:-
- 10.2.1 arising from or attributable to any drawing, design or specification supplied by the Buyer;
- 10.2.2 arising from fair wear and tear, neglect, failure to follow the Seller’s instructions, misuse or improper installation or alteration or repair of the Goods, including failure to follow any specific preventative maintenance schedule provided by the Seller;
- 10.2.3 if the total price for the Goods has not been paid by the due date for payment; or
- 10.2.4 if the Buyer fails to notify any claim in respect of any of the Goods which is based on a breach of the warranty in Condition 10.1 within 30 days after the discovery of the breach.
10.3 The warranty in Condition 10.1 does not extend to parts, materials or equipment not manufactured by the Seller in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee given by the manufacturer to the Seller, and which the Seller will, so far as possible, assign to the Buyer on the written request of the Buyer.
10.4 Where any valid claim in respect of the Goods is notified to the Seller within the warranty period set out in Condition 10.1, the Seller shall be entitled to repair or replace the Goods (or the part in question) at the premises of the Seller free of charge or, at the Seller’s discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price).
10.5 All Goods returned by the Buyer to the Seller for repair or replacement pursuant to Condition 10.4 shall be returned freight paid by the Buyer and shall be insured by the Buyer for the value of the shipment.
10.6 The Buyer hereby acknowledges and agrees that in consideration of the price agreed to be paid by it pursuant to these Conditions the Seller’s liability arising out of this Contract shall in no event exceed the price paid by the Buyer to the Seller.
10.7 Subject to the foregoing all conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to the Goods are hereby excluded and the Seller shall be under no liability to the Buyer for any loss (including loss of profits), damage or injury direct indirect or consequential howsoever arising save that the Seller accepts liability for death or personal injury caused by the negligence of the Seller.
11 Force Majeure
11.1 The Seller shall not be liable to the Buyer for loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of the Goods by the Seller being prevented, hindered, delayed or rendered uneconomic by reason of circumstances or events beyond the Seller’s reasonable control including (but not limited to) Act of God, war, riot, strike, lock-out, trade dispute or labour disturbance, accident, break-down of plant or machinery, fire, flood, storm, difficulty or increased expense in obtaining workmen, materials or transport other circumstances affecting the supply of the Goods or of raw materials therefor by the Seller’s normal source of supply or the manufacture of the Goods by the Seller’s normal means or the delivery of the Goods by the Seller’s normal route or means of delivery.
11.2 If due to such circumstances or events the Seller has insufficient stocks to meet all its commitments the Seller may apportion available stocks between its customers at its sole discretion.
The Seller shall be entitled to terminate these Conditions and any Contract hereunder immediately by written notice to the Buyer if:-
12.1 the Buyer commits any continuing or material breach of any of the provisions of these Conditions and, in the case of such a breach which is capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
12.2 the Buyer allows an encumbrancer to take possession or a receiver is appointed over any of its property or assets, or it makes any voluntary arrangement with its creditors or becomes subject to an administration order or it goes into liquidation (except for the purposes of an amalgamation, reconstruction or other reorganisation) or it ceases, or threatens to cease, to carry on business; or
12.3 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer
13.1 Failure by the Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
13.2 Each party agrees and undertakes that it will keep confidential and will not use for its own purposes nor without the prior written consent of the other party disclose to any third party any information of a confidential nature, (including trade secrets and information of commercial value) which may become known to such party from the other unless such information is public knowledge (other than by breach of this Condition) or is required to be disclosed by a court of competent jurisdiction.
13.3 The Buyer undertakes that it shall not during the term of the supply of the Goods nor from 6 months following the last date of supply of the Goods unless otherwise agreed by the Seller in writing solicit, entice away, offer employment or otherwise engage in the same or similar capacity to that under which they are employed or engaged by the Seller from the Seller any officer, manager or employee presently in the employment of the Seller with whom the Buyer has had material dealings within the 12 months preceding the last date of supply of the Goods whether or not such person has knowledge or information confidential to the Seller or would commit a breach of his or her contract of employment by reason of his or her leaving the employment of the Seller
13.4 The Buyer shall, on receipt of the demand of the Seller, supply to the Seller such financial data and related information as may be required to permit an on-going determination of the financial status of the Buyer. If at any time during the performance of this Contract the Buyer fails to provide adequate assurances to the Seller of its financial ability to perform this Contract, the Seller may treat this Contract as cancelled pursuant to the provision of Condition 12.3.
13.5 If any provision or part of a provision of these conditions shall be, or be found by any court of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of these conditions, all of which shall remain in full force and effect.
13.6 Except as expressly stated in these Conditions a person who is not a party to a Contract hereunder may not enforce any of these Conditions under the Contracts (Rights of Third Parties) Act 1999.
13.7 Any notice or other information required or permitted to be given by either party under these Conditions shall be deemed to have been validly given if served personally on that party or is sent by first class pre-paid post to the last known addressed of that party. If sent by first class pre-paid post the notice shall be deemed to have been received 2 working days after the date of posting. If any such notice or other information is given by means of facsimile or other immediate form of communication, then notice shall be deemed to have been received on the same day, provided it is sent within normal working hours.
13.8 The Contract shall be governed by and construed in accordance with English law and the parties hereby submit to the non-exclusive jurisdiction of the English Courts.
If you have any questions regarding our Conditions of Sale, please call us on +44 (0) 1373 823 322 or by contacting us.