1.1 In these Conditions:-
“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
“the Company” means W Ridley & Co Ltd (registered in England under company number 1690833);
“the Conditions” means the standard terms and conditions of sale set out herein and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Company and specified herein or overleaf;
“the Contract” means the contract between the Company and the Customer for the sale and purchase of the Goods in accordance with these Conditions;
“the Customer” means the Person whose order for the Goods is accepted by the Company by way of ‘Order Acknowledgement’ or otherwise;
“Force Majeure Event” has the meaning given in clause 16
“the Goods” means the goods (or any part of them) which the Company is to supply in accordance with these Conditions and as set out in the Order;
“Order ” means the Customer’s order for the Goods, as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Company’s quotation, or as set out overleaf, as the case may be;
“Person” means an individual or a body corporate or unincorporate or a partnership and “Persons” shall be construed accordingly;
“Writing” shall have the ordinary meaning ascribed to it, including type written documents or communications and shall include telex, cable, e-mail, 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 Except where the context otherwise requires words herein denoting the singular include the plural and vice versa; words denoting any one gender include all genders.
1.4 References to clauses are, unless the context otherwise permits, references to clauses of these Conditions.
1.5 Clause headings herein are for reference only and do not affect the construction of these Conditions or the Contract.
2.1 The parties to these Conditions are the Company and the Customer. All transactions as between the Company and the Customer are as between principal and principal and are subject to the following expressed conditions.
3.1 The Contract between the Company and the Customer cannot be varied, altered or excluded unless such variation, alteration or exclusion is agreed between the parties in Writing between the authorised representatives of the Company and the Customer (being in the case of the Company a Director of the Company) and signed by the parties to be bound.
4.1 Any concession, latitude or waiver allowed by the Company at any time shall only apply to the extent specifically covered by such concession, latitude or waiver and shall not prevent the Company otherwise exercising its full rights under the Contract and these Conditions.
5. Acceptance of Orders
5.1 All quotations or tenders made and price or product lists supplied by the Company shall be treated as invitations to treat only.
5.2 The Company also reserves the right (without prejudice to any other remedy) to cancel any full or part Order placed by the Customer as a result of the Company being prevented from supplying the Goods ordered for any reason whatsoever.
5.3 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Customer and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
5.4 An Order shall only be deemed to be accepted when the Company issues an acceptance of the Order in Writing at which point the Contract shall come into existence.
5.5 In addition to the Company’s rights set out in Clause 5.2 above, the Company reserves the right to refuse to accept any Order placed with it if it is not capable of fulfilling such Order and further, with the consent of the Customer, to sub-contract such Order to a third party. The Customer hereby agrees that the Company shall pass such work on to the sub-contractor as agent for the sub-contractor and any rights of action that the Customer may have in relation to such work carried out by the sub-contractor shall be between the Customer and the sub-contractor.
5.6 The Contract constitutes the entire agreement between the Company and the Customer. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Any samples, descriptive matter, or advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues, brochures or websites 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 or any other contract between the Company and the Customer for the sale of the Goods.
6.1 Subject to Clause 6.4, the Company reserves the right to vary or upgrade the specification of the Goods without liability to the Customer.
6.2 It is incumbent upon the Customer to satisfy himself absolutely that he fully understands the specification of the Goods that the Customer is purchasing.
6.3 To the extent that the Goods are to be manufactured in accordance with a specification supplied by the Customer, the Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the specification. This clause 6.3 shall survive termination of the Contract.
6.4 Subject to the generality of clause 6.1, the quantity, quality, description and specification of the Goods to be supplied to the Customer by the Company shall be in accordance with the description of such goods indicated in the Order subject always to all and any amendments or variations whatsoever which may be agreed in Writing between the Company and the Customer before delivery.
6.5 The Company 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 Company’s specification, which do not materially affect their quality or performance.
6.6 It is further hereby acknowledged by the Customer that where there may be difficulty in producing exact quantities of the Goods, a margin of 10% above or below the exact quantity of Goods ordered shall be accepted by the Customer and the Customer shall have no right of action in respect of any loss suffered as a result of quantities being within the margin of 10% above or below the quantity of Goods stated in any Order accepted by the Company..
6.7 It is accepted by the Customer that there may be an inaccuracy in the dimensions of cartons, of 4mm in width or length, from the measurements stated in the Order and the Customer shall have no right of action in respect of any loss suffered as a result thereof. Other packaging materials are subject to prevailing trade tolerances.
7. Carriage and Packaging
7.1 Unless expressly stated in Writing by the Company all prices quoted include packing and delivery charges.
7.2 The packaging of the Goods is at the sole discretion of the Company who shall have the right to pack the Goods in such manner and with such materials as it thinks fit.
7.3 There shall be a “small order delivery charge” for all orders below a minimum value, such minimum shall be set by the Company from time to time.
7.4 The Company reserves the right to charge an “urgent order delivery charge” where the Customer requests delivery earlier than the agreed delivery date and the means of delivery results in a higher than normal cost to the company.
8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the published price list in force as at the date of delivery.
8.2 The price of the Goods is exclusive of amounts in respect of value added tax (VAT) and any other taxes from time to time in force. The Customer shall, on receipt of a valid VAT invoice or other valid tax invoice from the Company, pay to the Company such additional amounts in respect of VAT or other tax as are chargeable on the supply of the Goods.
8.3 The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, material or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions. The Customer shall have the right to cancel the Contract in the event that the Company has to increase the price of the Goods in accordance with this clause.
9.1 The Company may invoice the Customer for the Goods on or at any time after the completion or deemed completion of delivery.
9.2 Unless otherwise specified on the Order Acknowledgement or Company’s invoice, the Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice (“the Due Date”). Payment shall be made to the bank account nominated in Writing by the Company and notified to the Customer from time to time. The time of payment is of the essence.
9.3 Where the Customer wrongfully fails to take delivery of the Goods, the Company shall be entitled to invoice the Customer for the price at any time after the Company has notified the Customer that the Company has tendered delivery of the Goods.
9.4 If the Customer fails to make any payment on the Due Date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:-
9.4.1 cancel the Contract or suspend any further deliveries to the Customer; and/or
9.4.2 appropriate any payment made by the Customer to such of the Goods (or the Goods supplied under any other contract between the Customer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Customer); and/or
9.4.3 charge the Customer interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’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.
9.5 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 Company in order to justify withholding payment of any such amount in whole or in part. The Company 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 Company to the Customer.
10.1 If the recovery of any sums outstanding from the Customer to the Company is passed to a debt collection agency, the Customer shall pay the Company’s costs incurred on an indemnity basis in instructing the said debt collection agency and all legal and other costs ancillary thereto.
11.1 Save where the Customer collects the Goods from the Company’s premises (in which case delivery shall take place at the Company’s premises) delivery shall take place on arrival at the Customer’s premises or such other actual location of which the Customer shall have previously notified the Company in Writing (“the Delivery Location”).
11.2 The Company will endeavour to complete on any delivery dates stipulated, but such dates are only estimated and the Company will not be liable to the Customer for any loss, damage, penalty, claim or any other matter of whatsoever nature arising from any delay of twenty-eight days or less in delivery. The time of delivery is not of the essence.
11.3 For any delay of over twenty-eight days, the Company’s 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 Company 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 Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or the Delivery Location not being open for the delivery.
11.4 The Company shall be entitled to deliver 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.
11.5 The Company reserves the right to withhold delivery of Goods to the Customer at any time when the Customer is exceeding or upon delivery would exceed any credit limit with the Company either in relation to such Goods or otherwise.
11.6 A delivery or collection note signed by the Customer or the duly authorised agent of the Customer is deemed to be absolute evidence of delivery or collection of the Goods specified therein.
11.7 If the Customer fails to take delivery of the Goods within three Business Days of the Company notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Company’s failure to comply with its obligations under the Contract:
11.7.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Company notified the
Customer that the Goods were ready; and
11.7.2 the Company shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
11.8 If 10 Business Days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Company 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.
11.9 The Company 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.
12. Cancellation by the Customer
12.1 If the Customer cancels an order in whole or part at any time the Customer shall be liable to pay to the Company as liquidated damages such an amount as the Company shall reasonably estimate to represent its loss (including loss of profit) in consequence of such cancellation. Such cancellation shall not be effective unless it is made in Writing and is accepted by the Company.
13. Claims and Damages
13.1 The Customer shall upon delivery examine the Goods and shall promptly (but in any event within three days of delivery) notify the Company in Writing of any apparent damage, defect or shortage. These Conditions shall not affect the Customer’s statutory rights in any way whatsoever.
13.2 In default of the written notification referred to in clause 13.1 the Company shall be deemed conclusively to have properly performed its obligations under the Contract.
13.3 The Company shall not be liable for any loss or damage of any kind arising out of the use of the Goods supplied by it under the Contract. The limit of the Company’s liability under the Contract for any breach of the terms of these Conditions, whether as to damages or otherwise, shall be limited to the contract price of the Goods.
13.4 The Company shall not be liable or held responsible for any damages, costs, charges or expenses awarded against or any liabilities incurred by the Customer arising out of any infringement of any patent belonging to third parties.
13.5 Goods supplied to the Customer may not be returned without the Company’s Written consent. The Company reserves the right to refuse Goods so returned.
14. Title and Risk
14.1 The Customer acknowledges that before entering into the Contract it has expressly represented and warranted to the Company that it is not insolvent and has not committed any act of bankruptcy or being a company with limited or unlimited liability, knows of no circumstances which would entitle any debenture holder or secured creditor to appoint a receiver or entitle any Person to petition for winding-up of the Customer or exercise any other right over or against the Customer or its assets.
14.2 The risk with Goods shall pass to the Customer on delivery and the Customer should insure the Goods accordingly. In the event of any loss or damage to the Goods prior to the Company receiving payment in full for the Goods or in respect of any sums owed by the Customer to the Company, the Customer shall hold the proceeds of any such insurance on behalf of the Company as trustee for the Company.
14.3 Notwithstanding the delivery and passing of risk in the Goods or any other provision of these Conditions, the legal and beneficial property and title in the Goods shall remain in the Company and shall not pass to the Customer until:-
14.3.1 the purchase price of all Goods comprised in the Contract has been paid in full to the Company either by way of cash or cleared funds;
14.3.2 any other sums owed by the Customer to the Company have been paid in full to the Company either by way of cash or cleared funds.
14.4 Until title to the Goods has passed to the Customer, the Customer shall:
14.4.1 hold the Goods on a fiduciary basis as the Company’s bailee;
14.4.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
14.4.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
14.4.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
14.4.5 notify the Company immediately if it becomes subject to any of the events listed in clause 15.3; and
14.4.6 give the Company such information relating to the Goods as the Company may require from time to time,
14.5 Notwithstanding clause 14.4, the Customer may resell or use the Goods in the ordinary course of its business.
14.6 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 15.3, or the Company 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 Company may have, the Company 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.
14.7 The Customer may attach or fix the Goods to other property belonging to the Customer but, provided that the Goods may be removed without causing damage (other than superficial damage) to the property of the Customer, such attaching or fixing shall not affect the ownership of the Goods.
14.8 In the event that the price is not paid by the Due Date, the Company shall at its absolute discretion be at liberty either to recover the Goods or maintain an action for the price and/or damages.
14.9 No provision of these Conditions shall prejudice the Company’s right to exercise any alternate remedy whatsoever in default of payment by the Customer or any other breach of contract.
15.1 If the Company or the Customer shall not comply with any of their obligations hereunder, the other party shall have the right to terminate the Contract forthwith but without affecting any other claim, right or remedy it may have hereunder against the other party.
15.2 If the Customer becomes subject to any of the events listed in clause 15.3, or the Company 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 Company:
15.2.1 the Company may at its option cancel the Contract or any contract in relation to future deliveries without incurring any liability to the Customer;
15.2.2 the price of all Goods delivered to the Customer to date and all expenses incurred by the Company in performance or part performance of this or any other contract with the Customer and any sums due to it from the Customer on this or any other account shall immediately become due and payable from the Customer to the Company;
15.2.3 the Company has the right to cancel any other contract made with the Customer;
15.2.4 the Company shall have the right, without notice, to enter upon the Customer’s premises and remove any Goods and materials which are the property of the Company; all such rights to be without prejudice to the Company’s right to recover the amount due to the Company for Goods delivered to date and any loss sustained.
15.3 For the purposes of clause 14.4.5, clause 14.6 and clause 15.2, the relevant events are:
15.3.1 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; or
15.3.2 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; or
15.3.3 (being an individual) the Customer is the subject of a bankruptcy petition or order; or
15.3.4 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 14 days; or
15.3.5 (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; or
15.3.6 (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or
15.3.7 a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or
15.3.8 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 16.3.1to clause 16.3.7 (inclusive); or
15.3.9 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or
15.3.10 the financial position of the Customer deteriorates to such an extent that in the opinion of the Company the capability of the Customer adequately to fulfil its obligations under the Contract has been placed in jeopardy; or
15.3.11 (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.
16. Force Majeure
16.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract or any loss suffered by the party to the extent that such failure, delay or loss 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.
17. Limitation of Liability
17.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
17.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
17.1.2 fraud or fraudulent misrepresentation; or
17.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
17.1.4 defective products under the Consumer Protection Act 1987; or
17.1.5 any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
17.2 Subject to clause 18.1:
17.2.1 the Company 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 indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from a deliberate breach of the Contract by the Company, its employees, agents or subcontractors); and
17.2.2 the Company’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, including losses caused by a deliberate breach of the Contract by the Company, its employees, agents or subcontractors shall not exceed 100% of the price of the Goods.
17.3 The Company shall not be liable for any loss or damage caused as a result of the Customer failing to comply with any provisions of these Conditions.
18.1 Should any of these Conditions be found by a court or other competent authority to be void or unenforceable such provision shall be deemed to be deleted from these Conditions and the remaining Conditions shall continue in full force and effect.
19.1 Save as hereinbefore otherwise provided, any notice required or permitted to be given by the Customer under these Conditions shall be in Writing, addressed to the Company at its trading address shown on the Contract. Any notice required or permitted to be given by the Company to the Customer under these Conditions shall be in Writing, addressed to the Customer at the address shown for the Customer overleaf or as otherwise indentified to the Company from time to time.
20.1 To the extent of any conflict between these Conditions and any Terms and Conditions of the Customer either on the Customer’s order form or otherwise, the Conditions herein contained shall take precedence. The Company shall not be bound by the Customer’s Terms and Conditions or any of them unless expressly agreed to in Writing by a Director of the Company.
21. Proper Law
21.1 These Conditions and the Contract shall be construed according to English Law and the parties hereto hereby submit to the non‑exclusive jurisdiction of the Courts of England and Wales.
22.1 The Company 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.
22.2 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 Company.