These Conditions of Sale will apply to any contract for the sale of goods ("the Goods") and/or the supply of services including construction services (“the Services”) ("the Contract") between J & J Carter Limited of Unit 2, 34 Walworth Road, Walworth Business Park, Andover, Hampshire, United Kingdom, SP10 5LH ("the Company") and the Customer of the Company ("the Customer") at the price specified in the contract ("the Price").
1.1 An estimate or quotation provided by the Company does not constitute a contractual offer but rather an invitation or offer to do business which will remain available for 30 days after the date of the estimate or quotation.
1.2 Any budgetary illustration provided by the Company will not be binding on the Company until it is confirmed by acceptance of an order by a Customer, and will be subject to final design.
1.3 Transactions, agreements and contracts become binding when confirmed by the Company in writing.
1.4 A request by the Customer to provide an estimate or quotation shall be deemed to be an authorisation by the Customer to the Company to undertake such credit or other checks on the Customer as the Company deems appropriate.
2.1 These Conditions of Sale shall apply to all Contracts for the sale of Goods and/or supply of Services by the Company to the Customer to the exclusion of all other terms and conditions including any terms or conditions which the Customer may purport to apply under any purchase order, confirmation of order or similar document.
2.2 All orders for Goods and/or Services shall be deemed to be an offer by the Customer to purchase Goods and/or Services pursuant to these Conditions of Sale.
2.3 Acceptance of delivery of the Goods and/or Services shall be deemed conclusive evidence of the Customer's acceptance of these Conditions of Sale. Any variation to these Conditions of Sale (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Company.
3.1 The Goods are delivered to the Customer when the Company makes them available to the Customer or any agent of the Customer, or any carrier (who shall be the Customer's agent whoever pays its charges) at the Company's premises or other delivery point agreed by the Company.
3.2 The risk in the Goods passes when they are delivered in accordance with clause 3.1.
3.3 The Company may at its discretion deliver the Goods by instalments in any sequence.
3.4 Where the Goods are delivered by instalments, no default or failure by the Company in respect of any one or more instalments shall vitiate the Contract in respect of the Goods previously delivered or undelivered Goods. The Company may deliver to the Customer and the Customer shall accept in satisfaction of the Contract a lesser number than the number of goods ordered.
3.5 Any dates quoted by the Company for the delivery of the Goods are approximate only and shall not form part of the Contract and the Customer acknowledges that in the performance expected of the Company no regard has been paid to any quoted delivery dates.
3.6 The Customer shall ensure where a date or dates for delivery of the Goods have been specified by the Company, the Customer shall be in a position to take delivery of the Goods on the date or dates specified.
3.7 If the Customer fails:
3.7.1 to take delivery of the Goods or any part of them on the due date; and
3.7.2 to provide any instructions or documents required to enable the Goods to be delivered on the due date then the Company may on giving written notice to the Customer store or arrange for the storage of the Goods and on service of the notice:
3.7.3 risk in the Goods shall pass to the Customer;
3.7.4 delivery of the Goods shall be deemed to have taken place; and
3.7.5 the Customer shall pay to the Company all costs and expenses including storage, any redelivery and insurance charges arising from its failure
3.8 The Company shall not be liable for any penalty, loss, injury, damage or expense arising from any delay or failure in delivery or performance from any cause at all nor shall any such delay or failure entitle the Customer to refuse to accept any delivery or performance or repudiate the Contract.
4.1 The Company shall supply the Services in accordance with the estimate or quotation.
4.2 Any dates quoted by the Company for the supply of the Services (including without limitation any dates for completion of the supply of the Services) shall be approximate only and shall not form part of the Contract and the Customer acknowledges that in the performance expected of the Company no regard as been paid to any quoted dates for supply or completion of the Services.
5.1 The Price for the Goods is ex-works including loading but excludes packaging, insurance and carriage, VAT and other taxes and duties. The Price invoiced is calculated in respect of the quantities of Goods actually delivered irrespective of the quantity in respect of which any quotation was issued.
5.2 The Price for the Services excludes VAT and other taxes and duties.
5.3 The Company shall have the right in respect of any uncompleted portion of the Contract to adjust the Price for any increase in the price of materials, parts, labour, transport, changes in work or delivery schedules or quantities, increase in the work required for the provision of the Services or any other costs of any kind arising for any reason after the date of the Contract.
5.4 The Price of the Goods and/or Services shall be the Price stipulated in the Company's price list current at the date of delivery of the Goods and/or Services.
6.1 All invoices are payable without discount of any kind within 30 days of the date of the Company's invoice.
6.2 UNDER NO CIRCUMSTANCES SHALL THE CUSTOMER BE ENTITLED TO MAKE ANY DEDUCTION OR WITHHOLD PAYMENT OF ANY AMOUNT FOR ANY REASON AT ALL.
6.3 Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at the Barclays Bank plc base rate plus 4% subject to a minimum of 12%, compounded monthly, from time to time in force and shall accrue at such rate after as well before any judgement. The Company reserves the right to charge in addition for Collecting Overdue Debts, either internally or via a Third Party, such charges will be advised in writing at that time.
6.4 If the Customer fails to make payment of any invoice on the due date then without prejudice to any other right of the Company, the Company shall be entitled to suspend any deliveries to be made under the Contract or any other contract with the Customer provided that the Customer shall not be released from its obligations to make payments to the Company in terms of any Contract.
6.5 Customers that have not been granted credit account facilities by the Company shall pay the invoice amount to the Company on or prior to collection of the order by Bank Draft or BACS payment or with prior approval of the Company by cheque.
6.6 In the case of Customers that have been granted credit account facilities by the Company and where it is necessary for the Company to purchase materials from a third party the Company shall be entitled to require a payment of up to 60% of the Price on receipt of the Customer's order.
6.7 Payment in full must be made on placing the order by any Customer that requires delivery outside of the U.K. and the Company shall not ship any such Goods until payment has been cleared.
6.8 All invoices are issued in United Kingdom Pounds Sterling, and therefore must be paid in the same currency. Other currencies may be accepted, but only by prior agreement with the Company. Customers residing outside of the United Kingdom are reminded that they are fully responsible for all bank charges and fees in connection with bank transfers and the payment of our invoices.
7.1 For the purposes of Section 12 of the Sale of Goods Act 1979 the Company shall transfer only such title or rights in respect of the Goods as the Company has and if the Goods are purchased from a third party shall transfer only such title or rights as that party had and has transferred to the Company.
7.2 Notwithstanding the earlier passing of risk and delivery of the Goods, title of the Goods shall not pass from the Company until:
7.2.1 the customer shall have paid the Price plus VAT in full; and
7.2.2 no other sums whatever shall be due from the Customer to the Company
7.3 Until title in the Goods passes to the Customer in accordance with clause 6.2 the Customer shall hold the Goods and each of them on a fiduciary basis as bailee for the Company.
7.4 Until title passes the entire proceeds of sale of the Goods shall be held in trust for the Company and shall be held in a separate designated account and not mingled with other monies or paid into any overdrawn bank account and shall be at all times identifiable as the Company's money.
7.5 The Company shall be entitled to recover the Price of the Goods notwithstanding that property in any of the Goods has not passed from the Company.
7.6 Until such time as title in the Goods passes from the Company the Customer shall upon request deliver up such of the Goods as have not ceased to be in existence or re-sold to the Company. If the Customer fails to do so the Company may enter upon any premises owned occupied or controlled by the Customer where the Goods are situated and repossess the Goods.
8.1 The Customer shall ensure that all orders for Goods are correct. The Company shall have no liability in relation to Goods (whether to refund or otherwise) providing those Goods comply with the order and are not defective. If the Customer has placed an order by mistake (including a mistake in the type, size or specification of the Goods), the Company (may at its entire discretion and solely with the Company’s prior written consent) allow the Customer to return the Goods, at the Customer’s expense, subject to a restocking fee. The amount of the restocking fee will be advised by the Company at the time of its consent to the return of the Goods and shall be between 25 and 40% of the Price.
8.2 Although the Company will make every effort to manufacture the Goods in accordance with the specification slight variations are unavoidable and the Company shall have no liability to the Customer where such variations are not material.
8.3 Where any information is provided by the Customer the Company accepts no responsibility for any errors or inconsistencies in the data or in the interpretation of such data by the Company.
8.4 Under no circumstances shall the Company have any liability of whatever kind for:
8.4.1 any defects resulting from fair wear and tear, accident, improper use by the Customer or use by the Customer except in accordance with the instructions or advice of the Company or the manufacture of any goods or neglect or from any instructions or materials provided by the Customer;
8.4.2 any Goods which have been adjusted, modified or repaired except by the Company or in accordance with the manufacturers recommendations;
8.4.3 the suitability of any Goods for any particular purpose or use under specific conditions whether or not the purpose or conditions were known or communicated to the Company;
8.4.4 any substitution by the Customer of any materials or components not forming part of any specification of the Goods agreed in writing by the Company;
8.4.5 any descriptions, illustrations, specifications, figures as to performance, drawings and particulars of weights and dimensions submitted by the Company, contained in the Company's catalogues, price lists or elsewhere since they are merely intended to represent a general idea of the Goods and not form part of the Contract or be treated as representations. Any technical information, recommendations, statements or advice furnished by the Company, its servants or agents not given in writing in response to a specific written request from the Customer before the Contract is made;
8.4.6 any variations in the quantities or dimensions of any Goods or changes of their specifications or substitution of any materials or components, if the variation or substitution does not materially affect the characteristics of the Goods and the substituted materials or components are of a quality equal or superior to those originally specified.
8.5 The Company will endeavour to supply the Goods in accordance with the samples provided but the Company shall have no liability to the Customer where this is not the case as the Company cannot guarantee consistency.
9.1 The Company warrants that the Services shall be provided with reasonable skill and care.
9.2 The Company will not act as a planning supervisor or as a principal contractor and the Customer shall be entirely responsible for ensuring all such positions are filled.
9.3 The Customer shall ensure that the site for the provision of the Services is:
9.3.1 available during normal working hours (being 08:00hrs to 18:00 hrs) during the anticipated (or actual) dates for the provision of the Services;
9.3.2 clear and free of all excavations;
9.4 If work is required outside of normal working hours (as detailed in clause 9.3), whether such work outside normal working hours is anticipated or otherwise, the Company reserves the right to make an additional charge for such hours outside of normal working hours.
9.5 The Company will undertake its own health and safety risk assessments. Any personnel provided by the Company for the provision of the Services shall, if required by the Customer or any supervisor of the site, attend reasonable site or health and safety inductions (limited to 2 hours). If the Customer or any supervisor of the site requires the personnel provided by the Company to attend a site or health and safety induction in excess of 2 hours, the Company shall be entitled to make an additional charge per person per hour for attendance at such inductions.
10.1 Any claim under this Contract shall be notified by the Customer to the Company within seven days of the delivery of the Goods or the completion of the Services (whichever is the later).
10.2 In the case of any defect which is not reasonably apparent on inspection within seven days of the defect coming to the Customer's attention and in any event in the following periods:
10.2.1 for Goods manufactured by the Company twelve months from the date of delivery;
10.2.2 for second hand Goods or Goods manufactured or reconditioned by the Company seven days from the date of delivery;
10.2.3 for Goods not of the Company's manufacture the warranty period given by the manufacturer.
10.3 Any claim under this clause must be in writing and must contain full details of the claim including the part numbers of any allegedly defective Goods.
10.4 The Company shall be afforded reasonable opportunity and facilities to investigate any claims made under this condition and the Customer shall, if so requested in writing by the Company, promptly return any Goods the subject of any claim and any packing materials securely packed any carriage paid to the Company for examination.
10.5 The Company shall have no liability with regard to any claim in respect of which the Customer has not complied with the claims procedures in these conditions
11.1 The Company shall have no liability to the Customer for any loss or damage of any nature arising from any breach of any express or implied warranty or condition of the Contract or any negligence, breach of statutory or other duty on the part of the Company or in any other way out of or in connection with the performance or purported performance of or failure to perform the Contract except:
11.1.1 for death or personal injury resulting from the Company's negligence; and
11.1.2 as expressly stated in these conditions.
11.2 If the Customer establishes, within 7 days of the dispatch date, that any Goods have not been delivered, have been delivered damaged, are not of the correct quantity or do not comply with their description the Company shall, at its option, replace with similar Goods any Goods which are missing, lost or damaged or do not comply with their description, allow the customer credit for their invoice value or repair any damaged Goods.
11.3 If the Customer establishes that any Goods are defective the Company shall at its option, replace with similar Goods or repair any defective Goods, allow the Customer credit for their invoice value or the extent that the Goods are not of the Company's manufacture, assign to the Customer (so far as the Company is able to do so) any warranties given by the manufacturer of the Goods to the Company.
11.4 The delivery of any repaired or replacement Goods shall be at the Company premises or other delivery point specified for the original Goods.
11.5 If the Customer establishes that any Services are defective, the Company shall at it option rectify any such defect or allow the Customer credit for the value of such defective Services.
11.6 Where the Company is liable in accordance with this clause in respect of only some or part of the Goods and/or Services the Contract shall remain in full force and effect in respect of the other or other parts of the Goods and/or Services and not set off or other claim shall be made by the Customer against or in respect of such other or other parts of the Goods and/or Services.
11.7 No claim against the Company shall be entertained for any defect from any defect arising from any design or specification provided or made by the Customer or if any adjustments, alterations or other work has been done to the Goods and/or Services by any person except the Company.
11.8 The Company shall not be liable where any Goods, the Price of which does not include carriage, are lost or damaged in transit and all claims by the Customer shall be made against the carrier. Replacements for such lost or damaged Goods will, if available, be supplied by the Company at the prices ruling at the date of despatch.
11.9 In no circumstances shall the liability of the Company to the Customer under this Contract exceed the Price.
11.10 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE CUSTOMER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY AND ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM OR ARISING OUT OF THE MATTER SET OUT HEREIN, WHETHER A CLAIM FOR SUCH DAMAGE IS BASED UPON WARRANTY, CONTRACT, TORT, NEGLIGENCE OR OTHERWISE.
12.1 This Contract is subject to the law of England and Wales. The application of the United Nations Convention on Contracts for the International Sales of Goods (CISG) is excluded. All disputes arising out of this Contract shall be subject to the jurisdiction of the Court of England and Wales except that to the extent that the Contract between the parties is one to which Part 11 of the Housing Grants, Construction, and Regeneration Act 1996 and the Scheme for Construction Contracts (England and Wales) Regulations 1998 are applicable then the parties agree as follows:
12.1.1 a party to the Contract has the right to refer a dispute arising under the Contract for adjudication;
12.1.2 the parties shall comply with Section 1-26 of the Scheme for Construction Contracts (England and Wales) Regulations 1988 save to the extent that the scheme is hereby modified;
12.1.3 the parties are free to agree who shall act as adjudicator and in the absence of agreement the referring party shall request that the Official Referees Solicitors Association select a person to act as adjudicator provided that the parties shall use their best endeavours to ensure that the dispute is referred to an adjudicator within seven days of the notice given in clause 10.1.1;
12.1.4 the adjudicator shall reach a decision within 28 days of referral or such longer period as may be agreed by the parties or within an additional 14 days at the request of the adjudicator with the consent of the party by whom the dispute was referred;
12.1.5 the adjudicator shall act impartially and shall be entitled to take the initiative in ascertaining the facts and the law;
12.1.6 the decision of the adjudicator shall, except in the case of manifest error, finally determine the dispute;
12.1.7 the adjudicator his employees and any agents of the adjudicator shall not be liable for any act or omission in the discharge or purported discharge of his functions as adjudicator unless the act or omission is in bad faith.
12.1.8 The adjudicator’s fees are equally payable by both parties.
12.2 The Customer shall not assign, subcontract, license or otherwise dispose of any part of its rights or obligations under this Contract without the prior written consent of the Company.
12.3 If (i) the Customer fails to make any payment in accordance with this Contract; or (ii) commits any other breach of this Contract; or (iii) any distress or execution shall be levied upon any assets of the Customer; or (iv) the Customer offers to make any arrangement with its creditors or if any petition in bankruptcy is presented against the Customer or the Customer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Customer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver, administrative receiver or manager shall be appointed over the whole or any part of the Customer's business or assets or if any petition for the appointment of an administrator is presented against the Customer; or (v) the Customer shall suffer any analogous proceedings under foreign law; all sums outstanding in respect of the Goods shall become immediately due and payable.
12.4 The Company may cancel this Contract at any time before the Goods are delivered by giving written notice. On giving such notice the Company shall repay to the Customer any sums paid in respect of the Price. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
12.5 If the Goods are manufactured in accordance with any design or specification made by the Customer, the Customer shall compensate the Company in full on demand for all claims, expenses and liabilities of any nature in connection with them, including any claim, whether actual or alleged, that the design or specification infringes the rights of any third party.
12.6 Except for any items which are expressly agreed to be included in the Goods, all tools, patents, materials, drawings, specifications and other data provided by the Company shall remain its property and all technical information, patentable or unpatentable, copyright and registered designs arising from the execution of any orders shall become the property of the Company.
12.7 The Customer undertakes that he will not permit any copy of any item referred to in clause 10.6 to be made or permit information taken such drawings or specifications to be transferred to any person other than a person directly or necessarily engaged by the Customer in connection with the use of the Goods.
12.8 Neither party shall be liable for any default due to any act of God, war, strike, lockout, industrial action, fire, flood, drought, tempest or other event beyond the reasonable control of either party.
12.9 Any notice served under this Contract is sufficiently served if sent by pre-paid letter, post or telex to the usual or last known place of business of the addressee and proof of despatch shall be conclusive evidence of receipt by the addressee in due course of the transmission.
IN ANY EVENT OF CONFLICT OF TERMS, THESE TERMS SHALL PREVAIL.