Elliott Brothers Limited (“Seller”) – Standard Terms and Conditions (“Conditions”)
APPLICATION: Part I of these Conditions shall apply to all sales to business customers (i.e. customers acquiring goods or services wholly or mainly for use in the course of a business or trade (“B2B Sales”) and such sales are not made online and sales made to consumers (i.e. individuals not acquiring the goods or services in the course of their business or trade) (“B2C Sales”) on premises (i.e. in branch, face to face).
The additional Conditions contained in Part 2 shall apply only in the case of B2B Sales.
The reason for this distinction is that the Seller does not give business customers all the same rights as consumers. For example, business customers can't cancel their orders, they have different rights where there is a problem with a good or service and the Seller does not compensate them in the same way for losses caused by it or its goods or services. Where a condition applies just to businesses or just to consumers, this is clearly stated.
For B2B Sales made online, the Seller’s applicable terms and conditions can be found here.
For B2C Sales made via distance means (for example, online or via telephone or email), the Seller’s applicable terms and conditions can be found here.
Part 1 – APPLICABLE TO BOTH BUSINESS CUSTOMERS AND CONSUMERS
1. GENERAL
1.1 Unless otherwise agreed in writing by the Seller these Conditions shall apply to all orders accepted by the Seller for all goods and services supplied by the Seller.
1.2 An order by the Buyer placed with the Seller shall be deemed to be placed upon these Conditions. No variation of these Conditions shall be valid unless agreed in writing by the Seller and signed by a director of the Seller.
1.3 The Buyer’s order shall only be deemed accepted when the Seller issues a written acceptance of the order, at which point the contract between the parties comes into existence.
2. QUOTATIONS
All quotations given by the Seller:-
2.1 shall constitute an invitation to the Buyer to make an offer on the Conditions set out herein and all quotations are made subject to alteration and withdrawal by the Seller without notice;
2.2 shall in the event of any increase in transport costs, wages, manufacturers’ costs or the costs of materials be increased accordingly and this provision shall take effect up to the date of delivery. For B2C Sales, the Seller shall notify the Buyer accordingly and the Buyer can notify the Seller to end the contract, rejecting such increase and receive a refund for any goods or services that the Buyer has paid for in advance, but won’t receive; and
2.3 do not include any provision (unless otherwise stated) for Value Added Tax (“VAT”), import duties or any other Revenue charge.
3. TERMS AS TO PAYMENT
3.1 Unless otherwise stated by the Seller in writing, payment shall be made in full on or before the last day of the month following that in which the goods or services were delivered or made available for collection. If the purchase price is not paid within this period then without prejudice to any other rights of the Seller it may:-
3.1.1 charge and recover from or add to the account of the Buyer interest on any outstanding accounts at 2% per month (or such other interest rate as the Seller may decide provided that the interest rate shall not be changed by the Seller unless notice of the intended change has been given) and the Seller shall be entitled to add the interest so charged to the Buyer’s account each month so that it shall form part of any balance owing and so that any future interest shall be compounded and such interest shall be chargeable as well after judgement as before; and
3.1.2 in the case of instalment or periodic deliveries withhold any further deliveries until due payment is made.
3.2 All quotations and offer prices are exclusive of VAT and VAT will where appropriate be added to invoices at the rate applying at the date of the invoice.
3.3 If at any time (and whether before or after a contract has come into existence between the Seller and the Buyer) any circumstances or matters come to the knowledge of the Seller which reasonably make the Seller doubt the credit worthiness of the Buyer then the Seller shall be entitled to serve notice upon the Buyer requiring payment for the goods or services or goods and services to be supplied to be paid forthwith and in advance and if the Buyer shall fail to comply with such notice within the period of seven days then the Seller shall be entitled to (but not bound to) treat the contract as discharged and shall notify the Buyer in writing whereupon any contract between the parties shall be deemed to have been discharged and any part payment made by the Buyer shall be returned to it and neither party shall have any further liability to the other.
4. DELIVERY AND ACCEPTANCE
4.1 The Buyer shall be responsible for providing the necessary labour to unload and stack the goods (if applicable).
4.2 If goods are delivered to a site the Seller’s obligation is limited to delivery at a point on a safe hard road nearest to the site.
4.3 Subject to the Buyer’s remedies pursuant to these Conditions, acceptance shall be deemed to have taken place unless the Seller receives written notice to the contrary within seven working days after the date of delivery.
4.4 The Buyer shall be liable to pay storage charges at the rates from time to time stipulated by the Seller in the event of the Seller retaining the goods following the Buyer’s refusal to accept delivery.
4.5 The Seller will make every reasonable endeavour to carry out its contractual obligations within a reasonable period but time for delivery or for fixing shall not be of the essence of the contract.
4.6 Should the Seller be prevented from or delayed in fulfilling the terms of this contract by lockout, strikes, riots, civil commotion, war, fire, adverse climatic conditions or act of God or any other circumstances beyond the reasonable control of the Seller whether the same shall prevail at the Seller’s premises or at the place of manufacture or in transit, the Seller shall contact the Buyer as soon as possible to let the Buyer know and do what it can to reduce the delay. As long as the Seller does this, it shall have no liability to the Buyer for the delay and the Buyer shall not be entitled to refuse delivery until the expiration of a reasonable period specified in a notice to be served by the Buyer on the Seller after the anticipated delivery date. If the Seller shall consider that this contract is frustrated it shall be entitled to give written notice of such frustration to the Buyer and neither party shall have any further liability to the other arising out of this contract. For B2C Sales, if the delay is likely to be substantial, the Buyer can contact the Seller to end the contract and receive a refund for any goods or services the Buyer has paid for in advance, but not received.
5. DAMAGE SHORTAGE OR LOSS IN TRANSIT
5.1 The Seller is authorised to send the goods to the Buyer by way of an independent carrier and delivery of the goods by the Seller to an independent carrier shall be deemed delivery to the Buyer.
5.2 The Buyer shall notify the Seller as soon as reasonably practicable of any alleged damage or shortage on delivery and in the case of delivery by an independent carrier shall notify the carrier within the period required by its condition of carriage.
6. RETURNABLE PACKAGES
Where charged extra and returned in good condition with carriage paid they will be credited to the Buyer’s account.
7. BUYER’S INSOLVENCY
Without prejudice to clause 8 below if the Buyer becomes insolvent or compounds or makes any arrangement with his/her or its creditors or has any receiver or administrative receiver or administrator appointed in respect of his or its assets or being an individual has a bankruptcy petition issued against him/her or being a company has a winding petition presented against it or passes a resolution to wind up then in any such case the Seller may declare the contract to be cancelled in the case of a contract of sale or agreement to sell and shall be entitled to withhold any undelivered goods or to repossess any goods delivered and unpaid for and resell the same and any loss sustained on the resale shall be a debt due by the Buyer to the Seller.
8. PROPERTY IN GOODS
8.1 Notwithstanding delivery and passing of risk in the goods or any other of the provisions of these Conditions ownership of the goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the goods and all other goods and services supplied or agreed to be supplied by the Seller to the Buyer for which payment has not been made.
8.2 Until such time as ownership of the goods passes to the Buyer:
8.2.1 the Buyer shall hold the goods as the Seller’s fiduciary agent and bailee and shall keep the goods separate from those of the Buyer and third parties and properly stored protected and insured and identified as the Seller’s property;
8.2.2 the Buyer shall be entitled to resell or use the goods in the ordinary course of its business but shall account to the Seller for proceeds of sale or otherwise of the goods whether tangible or intangible including insurance proceeds and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and in the case of tangible proceeds properly stored protected and insured; and
8.2.3 (and provided the goods are still in existence and have not been resold) the Seller shall be entitled at any time to enter upon any premises of the Buyer or any third party where the goods are stored and repossess the goods.
8.3 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Seller.
9. THE RISK
The risk in the goods shall pass to the Buyer upon the earliest of the following namely upon:-
9.1 delivery of the goods to the Buyer or an independent carrier;
9.2 collection of the goods by the Buyer;
9.3 the goods being delivered in accordance with the Buyer’s direction or order; or
9.4 the Buyer refusing to accept delivery or collection of the goods.
10. BUYER PLANS AND DRAWINGS
10.1 The Seller shall not be under any obligation to exercise care and skill in checking any plans or drawings supplied by the Buyer and it shall be for the Buyer to ensure that all such plans and drawings are correct and accurate.
10.2 Illustrations, photographs, weights, dimensions and descriptions in catalogues and trade literature are intended as a general guide to goods only and are not intended to form the basis of a sale by description.
11. CONSUMER REMEDIES: THIS CLAUSE ONLY APPLIES TO B2C SALES
11.1 If the Buyer thinks there is something wrong with the goods, the Buyer must either bring the goods into one of the Seller’s branches or contact the Seller’s customer service team.
11.2 The Seller shall honour its legal duty to provide the Buyer with goods that are as described to the Buyer on the Website or otherwise and that meet all the requirements imposed by law.
11.3 If the Buyer has ordered goods, the Consumer Rights Act 2015 says goods must be as described, fit for purpose and of satisfactory quality. During the expected lifespan of the product the Buyer’s legal rights entitle the Buyer to the following:
11.3.1 Up to 30 days: if the goods are faulty, then the Buyer can get a refund.
11.3.2 Up to six months: if the goods can't be repaired or replaced, then the Buyer is entitled to a full refund, in most cases.
11.3.3 Up to six years: if the goods do not last a reasonable length of time, the Buyer may be entitled to some money back.
11.4 If the case of services, the Buyer can ask the Seller to repeat or fix a service if it's not carried out with reasonable care and skill, or get some money back if the Seller can't fix it.
12. DEFECTS DAMAGE OR SHORTAGE IN RESPECT OF PART OF ORDER
Defects, damage or shortage in respect of any part of an order shall not be a ground for cancellation of the remainder of the order.
13. DATA PROTECTION
13.1 The Seller is the data controller in respect of any personal data processed in connection with the contract. Please refer to the Seller’s privacy policy for further information.
13.2 It is the Seller’s policy to use credit reference agencies and in processing the Buyer’s credit account application (if applicable) the Seller and such agencies may record those enquiries (including enquiries about individual directors and shareholders). In the unlikely event of payment problems occurring, the Seller may pass the relevant information to a licensed credit reference agency. The information will be retained during the period of any credit given and may be used when assessing further applications for credit terms, for debt collection, for tracing and fraud prevention.
13.3 In submitting the Buyer’s credit account application, the Buyer confirms that it has the consent of the individual directors and shareholders to the use of their personal information in this way. In addition, the Seller may transfer details about the Buyer, (but not about the Buyer’s directors and/or shareholders) to the Seller’s financiers who may use, analyse and assess information about the Buyer, including the nature of its transactions and exchange such information with other members of their group of companies and others for credit or financial assessment, market research, statistical analysis, insurance claims, underwriting and training purposes. The Seller will collect and process personal data in accordance with its obligations under applicable UK data protection legislation.
14. GOVERNING LAW AND MISCELLANEOUS
14.1 These terms are governed by English law.
14.2 For B2C Sales, the Buyer can bring claims against the Seller in the English courts and if the Buyer lives in Wales, Scotland or Northern Ireland, the Buyer can also bring claims against the Seller in the courts of the country in which the Buyer lives. The Seller can claim against the Buyer in the courts of the country in which the Buyer lives. For B2B Sales, the Buyer irrevocably agrees to submit all disputes arising out of or in connection with this contract to the exclusive jurisdiction of the English courts.
14.3 The Seller may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the contract. The Buyer may not assign, transfer, mortgage, charge, subcontract, delegate, 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 Seller.
14.4 A waiver of any right or remedy is only effective if given in writing. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
14.5 The contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the contract.
14.6 If any provision or part-provision of the contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the contract. If any provision or part provision of the contract is deemed deleted under this clause 14.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
Part 2 – B2B SALES ONLY
15. INSPECTION AND SUITABILITY OF GOODS
15.1 The Buyer shall be responsible for ensuring that any goods supplied comply with any relevant planning laws or regulations, codes of practice, building regulations or any other statutory trade or local requirement and the Seller gives no warranty or representation as to compliance with any such requirement.
15.2 The Buyer shall satisfy itself that goods ordered are suitable and fit for the purpose for which the Buyer requires them and the Buyer shall be deemed not be relying upon the Seller’s judgement as to the fitness of the goods for the Buyer’s purpose unless the Seller agrees in writing that the Buyer is relying upon its skill and judgement as to the fitness of the goods for the purpose required by the Buyer.
15.3 Any samples submitted are intended to give an approximate idea of general quality and no condition or warranty is given or implied that goods will in all respects correspond to sample.
16. REMEDIES FOR BUSINESS CUSTOMERS
16.1 The Seller warrants that on delivery, the goods shall:
16.1.1 conform in all material respects with their description; and
16.1.2 be free from material defects in design, material and workmanship.
16.2 The Seller warrants that any services shall be provided using reasonable skill and care.
16.3 Unless an exception applies (in accordance with clause 16.5 below) if:
16.3.1 the Buyer gives the Seller notice in writing within a reasonable time of discovery that a good does not comply with the above business customer warranty;
16.3.2 the Seller is given a reasonable opportunity of examining such goods; and
16.3.3 the Buyer returns such goods to the Seller at the Buyer’s cost,
the Seller shall, at its option, repair or replace the defective good or reperform the services or refund the price of the defective goods/services in full and this will be the Seller’s only remedy for breach of the warranty. These terms shall apply to any repaired or replacement goods supplied by the Seller.
16.4 The Seller will not be liable for a good's failure to comply with the business customer warranty if:
16.4.1 the Buyer make any further use of such good after telling the Seller it is non-compliant;
16.4.2 the defect arises because the Buyer has failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the good or (if there are none) good trade practice;
16.4.3 the defect arises because the Seller followed any drawing, design or specification supplied by the Buyer;
16.4.4 the Buyer alters or repairs the good without the Seller’s written consent; or
16.4.5 the defect arises because of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
17. LIMITATIONS ON SELLER’S LIABILITY
17.1 The restrictions on liability in this clause 17 apply to every liability arising under or in connection with the contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
17.2 Nothing in the contract limits any liability which cannot legally be limited, including liability for:
17.2.1 death or personal injury caused by negligence;
17.2.2 fraud or fraudulent misrepresentation;
17.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
17.2.4 defective products under the Consumer Protection Act 1987.
17.3 Subject to clause 17.2, the Seller's total liability to the Buyer shall not exceed the price of the goods or services.
17.4 Subject to clause 17.2, the following types of loss are wholly excluded:
17.4.1 loss of profits;
17.4.2 loss of sales or business;
17.4.3 loss of agreements or contracts;
17.4.4 loss of anticipated savings;
17.4.5 loss of or damage to goodwill; and
17.4.6 indirect or consequential loss.
17.5 In clause 17.4.6, the phrase “consequential loss” shall be deemed to include (without limitation) economic loss, damage to any property other than the goods supplied pursuant to this contract, any building or engineering works or other remedial works necessary or alleged to be necessary by reason of any breach of contract or negligence of the Seller and any liability of the Buyer to any third party (save in respect of death or personal injury) but shall not include any loss for or arising out of death or personal injury.
17.6 Any condition or warranty implied into this contract by statute shall apply only insofar as it is not hereby lawfully excluded and no other implied condition or warranty shall apply.
18. GENERAL
18.1 In the absence of express written agreement on behalf of the Seller signed by a director of the Seller no conditions (whether attached to the order or otherwise) shall apply save for these Conditions, which shall constitute the entire contract between the Seller and the Buyer.
18.2 The Buyer must pay all amounts due to the Seller under these Conditions in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
18.3 The Buyer and Seller each agree that in entering into this contract they have not relied upon any representation or statement made by or on behalf of the other of them before the contract was entered into save for a representation made in writing and signed by or on behalf of the representor and in the case of the Seller by a director of the representor and the parties hereto agree that neither shall have any liability in respect of any representations or statements made save in the case of such written and signed representations.