1.1 In these Conditions unless the context otherwise requires the following words shall have the following meanings:
Acceptance means the Seller’s written acceptance of an Order or Special Order (as the case may be);
Account means a credit account held by the Buyer with the Seller;
Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Buyer means the buyer with whom the Seller is contracting for the supply of the Goods;
Contract means the contract for the purchase and sale of the Goods, consisting of the Order or Special Order (as the case may be), the Acceptance and the Conditions;
Conditions means the conditions of sale set out in this document;
Force Majeure Event means any act, event, omission or accident beyond the Seller’s reasonable control including strikes, lockouts or other industrial disputes (whether involving the workforce of the Seller or any other person), failure of transport network, act of God, war, terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, chemical or biological contamination, sonic boom, explosions, collapse of building structures, earthquakes, loss at sea, epidemics, pandemics or similar events, natural disasters or extreme adverse weather conditions or default of the Seller’s suppliers or subcontractors;
Goods means the goods the quantity and description of which are specified in the Order or Special Order (as the case may be) and confirmed in the Acknowledgment (or any part of them) to be sold by the Seller to the Buyer;
Order means an order for Goods placed by the Buyer with the Seller, excluding a Special Order;
Price has the meaning given to it under condition 5.1;
Quotation means the Seller’s verbal or written quotation for the Goods; Recipient means any person specified by the Buyer to whom the Goods may be delivered;
Seller means Armorgard Limited, registered in England & Wales under company number 08452262, whose registered office and business premises is at Unit 14-16 Fareham Industrial Park, Standard Way, Fareham, Hampshire, PO16 8XB; and
Special Order means an order for Goods that are not normally stocked and/or are required to be specially made or obtained by the Seller for the Buyer.
1.2 In these Conditions unless the context otherwise requires:
1.2.1 headings shall not affect the interpretation of these Conditions;
1.2.2 any reference to a statutory provision shall include references to that provision as from time to time modified or re-enacted (save to the extent that modifications or re-enactments made after the date of the Contract impose any new or extended liability or restriction on the Seller or Buyer);
1.2.3 any reference to a person includes any person, firm or company or other legal entity;
1.2.4 the singular includes the plural and vice versa and any gender includes any other gender;
1.2.5 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.6 a reference to writing or written excludes faxes but includes e-mails.
2 BASIS OF SALE
2.1 These Conditions, along with the Order or Special Order (as the case may be) and Acceptance, shall govern the Contract and all other terms and conditions are excluded. The Contract constitutes the entire agreement between the parties.
2.2 The Order or Special Order (as the case may be) constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Order or Special Order (as the case may be) shall only be deemed to be accepted when the Seller issues an Acceptance of the Order or Special Order (as the case may be), at which point the Contract shall come into existence.
2.3 The Seller’s employees or agents are not authorised to make any representations or recommendations or give any advice concerning the Goods unless expressly confirmed by an authorised representative of the Seller in writing.
2.4 All drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the Contract.
2.5 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, Acceptance, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.6 Any Quotation is valid for 30 days from its date or until earlier acceptance by the Buyer, after which time it may be altered or withdrawn by the Seller without giving prior notice to the Buyer.
3 ORDERS AND SPECIFICATIONS
3.1 Subject to condition 4, the quality and description of the Goods and any specification for them shall be as described in the Order or Special Order (as the case may be) and confirmed in the Acceptance.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable specification) it submits, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The Seller reserves the right to make any changes to the specification of the Goods which are required to comply with any applicable statutory or regulatory requirements or which do not materially affect their quality or performance.
4 BESPOKE GOODS
4.1 A Buyer may place a Special Order for bespoke Goods. Any such Special Order must be made in writing and must be accompanied by a computer-aided design drawing of the Goods required, including such details and specification as the Seller requires. The content and accuracy of such drawing, details and specification shall be the Buyer’s sole responsibility and the Seller excludes all liability to the Buyer in relation to the content or accuracy of such drawings, details and specification.
4.2 In relation to bespoke Goods, the Buyer shall be solely responsible for carrying out its own risk assessments regarding the use of the bespoke Goods and shall give the Seller such information as the Seller requires from time to time, at such times as the Seller may reasonably require, to enable the Seller to comply with any agreed timescales for the manufacture of such bespoke Goods.
4.3 To the extent that Goods are to be manufactured in accordance with a specification supplied by the Buyer, the Buyer:
4.3.1 warrants that it has the right to use such specification and supply it to the Seller;
4.3.2 grants the Seller a licence to use such specification for the purposes of manufacturing the Goods; and
4.3.3 shall indemnify the Seller 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 reasonable professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Seller’s use of such specification or from the Seller complying with the Buyer’s direction as the case may be. This condition 4.3 shall survive expiry or termination of the Contract.
4.4 The Buyer shall not without the Seller’s prior written consent be entitled to use any intellectual property of the Seller (including the Seller’s name and logo) for any purpose.
5.2 Notwithstanding any other provision of the Contract, the Seller reserves the right, by giving written notice to the Buyer at any time before delivery, to increase the Price to reflect any:
5.2.1 increase in the cost to the Seller which is due to any factor beyond the control of the Seller (including any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture);
5.2.2 change in the type or quantities of the Goods which is requested by the Buyer; or
5.2.3 delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
5.3 The Price excludes the following, which the Buyer shall be additionally liable to pay to the Seller:
5.3.1 value added tax and any other duties or taxes;
5.3.2 any charge levied by the Seller in respect of a request for delivery of the Goods at a specific time or place (other than a request for next day delivery) or by a specific means, including delivery of the Goods in a vehicle fitted with a tail-lift;
5.3.3 any charge made pursuant to condition 7.9;
5.3.4 any delivery charge levied by the Seller, including in respect of any Order or Special Order (as the case may be) which has a value of less than an amount specified by the Seller from time to time (which shall be payable in addition to any charge under condition 5.3.2); and
5.3.5 all other costs and expenses other than those specifically referred to in the Price which the Buyer shall be additionally liable to pay to the Seller at the same time as the Price to which they relate.
6.1 If the Buyer is purchasing Goods from the Seller for the first time or the Buyer does not have an Account, the Buyer shall pay the Price at the time the Order or the Special Order (as the case may be) is placed.
6.2 If the Buyer has an Account and is within its Account credit limit, the Buyer shall pay the Price no later than 30 days from invoice date unless prior written agreement is given by the Seller.
6.3 If the Buyer has an Account but is over its Account credit limit, the Seller may (at its entire discretion):
6.3.1 increase the credit limit on the Account, in which case the payment terms of the Price under condition 6.2 shall apply;
6.3.2 require a payment to be made to reduce the credit on the Account to below the credit limit for the Account; or
6.3.3 require the Price to be paid in accordance with condition 6.1 (or such other time before the period set out in condition 6.2).
6.4 All payments shall be made in pounds Sterling by credit or debit card, cheque or direct transfer of immediately available funds to the Seller’s nominated bank account provided that if the Buyer is located in a country which has adopted the Euro as its currency, payment may be made in Euros.
6.5 The Buyer shall make all payments due under the Contract without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
6.6 The Seller shall be entitled to recover the Price, notwithstanding that delivery may not have taken place and the title in the Goods has not passed to the Buyer. The time of payment of the Price shall be of the essence of the Contract.
6.7 In the event of late payment, without limiting any other right or remedy available to the Seller, the Seller may at its discretion:
6.7.1 charge interest on the overdue amount at the rate of 5% per annum above the base rate for the time being of The Royal Bank of Scotland plc accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgment; and/or
6.7.2 cancel the Contract and/or suspend any further deliveries to the Buyer under the Contract or any other contract made between the Seller and the Buyer, whether made before or after the Contract.
6.8 No payment shall be deemed received until the Seller has received cleared funds.
7.1 Unless agreed otherwise in writing or the Buyer collects the Goods from the Seller’s premises, and subject to conditions 5.3.2 and 5.3.4, the Goods shall be supplied Delivered at Place (Incoterms 2020) to such premises as the Buyer specifies.
7.2 Delivery of the Goods shall be completed either at the time the Buyer collects the Goods at the Buyer’s premises or on the Goods’ arrival at the roadside of the agreed premises for delivery. Unless otherwise agreed in writing, the Buyer or Recipient shall be responsible for loading the Goods at the Seller’s premises or unloading the Goods at the agreed premises for delivery.
7.3 If the Buyer does not have an Account:
7.3.1 Goods shall only be made available for collection or dispatched by the Seller once payment has been received in full in accordance with condition 6.8;
7.3.2 unless otherwise agreed in writing, the Seller shall use its reasonable endeavours to ensure that Goods are made available for collection or delivered to the Buyer within three Business Days of receipt of payment for such Goods.
7.4 If the Buyer has an Account:
7.4.1 Goods shall be made available for collection or dispatched as soon as reasonably practicable after the Contract has been formed; and
7.4.2 unless otherwise agreed in writing, the Seller shall use its reasonable endeavours to ensure that Goods are made available for collection or delivered to the Buyer within three Business Days of the date of the Order.
7.5 The Buyer may request next day delivery of the Goods at no additional cost. Subject to condition 5.3.2, the Buyer may request delivery of the Goods at a certain time or place or by a specific means.
7.6 Any dates specified by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be of the essence. The Seller shall not be liable for any loss or damage occurring through any failure or inability to meet such dates. The Goods may be made available for collection or delivered by the Seller in advance of the specified delivery date on giving reasonable notice to the Buyer.
7.7 If the Goods are delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions, or any claim by the Buyer in respect of any one or more instalments, shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7.8 If, for any reason, on the date for delivery the Buyer or the Recipient fails to collect or take delivery of any of the Goods due to the Buyer or Recipient’s fault:
7.8.1 risk in the Goods will immediately pass to the Buyer;
7.8.2 the Goods will be deemed to have been delivered; and
7.8.3 the Seller may:
(a) store the Goods until actual delivery whereupon the Buyer will be liable for all related costs and expenses (including storage and insurance);
(b) require immediate payment of the Price due from the Buyer in respect of the Goods; and/or
(c) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage, insurance and selling expenses) account to the Buyer for the excess over the Price or charge the Buyer for any shortfall below the Price; and/or
(d) in relation to bespoke Goods under a Special Order and after three months of storage pursuant to condition 7.8.3(a), reserve the right to dispose of the bespoke Goods, if necessary by way of destruction and will set-off against the Price paid under the Contract all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller in connection with the Special Order or its storage and/or destruction of the bespoke Goods.
7.9 If the Buyer or the Recipient does not have the equipment or facilities to unload the Goods on delivery, the Seller reserves the right to charge a reasonable sum in respect of unloading the Goods on the Buyer or the Recipient’s behalf.
7.10 The Buyer or the Recipient shall not be entitled to reject the Goods if the Seller delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order or Special Order invoice (as the case may be) on receipt of written notice from the Buyer that the wrong quantity of Goods was delivered.
7.11 The Seller’s liability for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
7.12 The Buyer or the Recipient shall examine the Goods at the time of delivery and shall note any damage, loss or shortfall in the Goods delivered on the carrier’s paperwork. In the event that any damage, loss or shortfall is noted on the carrier’s paperwork, a copy of the paperwork must be provided to the Seller within seven days of the date of delivery in accordance with condition 15.4.
8 RETURNS AND CANCELLATION
8.1 Subject to the provisions of this condition 8, no Order or Special Order in respect of which an Acceptance has been issued may be cancelled by the Buyer except with the written agreement of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller in the performance of the Contract up to (and including) the date of cancellation or as a result of cancellation.
8.2 The Seller may reject or cancel an Order or Special Order at any time up to the agreed estimated date for delivery and for any reason (including due to unavailability of stock) by giving the Buyer prior written notice.
8.3 Subject to condition 8.4, the Buyer shall be entitled to return Goods for any reason for up to thirty days of the date of delivery of such Goods, in which case the Buyer shall be liable to pay the Seller 20% of the value of the Price, in addition to the actual cost incurred by the Seller in delivering the Goods to the Buyer and returning the Goods to the Seller.
8.4 The Buyer shall not be entitled to return bespoke Goods ordered under a Special Order unless the bespoke Goods do not comply with condition 10.1.
9 RISK AND TITLE
9.1 The Goods are at the risk of the Buyer from the time of delivery or deemed delivery under condition 7.8.
9.2 Title to the Goods shall not pass to the Buyer until the earlier of:
9.2.1 the Seller receiving in full all sums due to it in respect of the Goods and other sums which are or become due to the Seller from the Buyer on any Account; or
9.2.2 the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer immediately before the time at which resale by the Buyer occurs
9.3 Until title to the Goods has passed to the Buyer (and provided that the Goods are in existence and have not been resold), the Buyer must:
9.3.1 keep the Goods separate from those of the Buyer and third parties;
9.3.2 keep the Goods properly stored, protected, insured and identified as those of the Seller;
9.3.3 give the Seller such information relating to the Goods as the Seller may require from time to time;
9.3.4 notify the Seller immediately if it becomes subject to any of the events listed in condition 12.1; and
9.3.5 hold any proceeds of the insurance referred to in condition 9.3.2 on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn bank account, but the Buyer may resell or use the Goods in the ordinary course of its business.
9.4 Until title to the Goods has passed to the Buyer (and provided that the Goods are in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so immediately, to enter on any premises of or under the control of the Buyer where the Goods are stored and repossess the Goods and the Buyer shall be deemed to have irrevocably granted the Seller permission to do so.
10.1 Except in relation to any gas strut or lock forming part of the Goods, the Seller warrants that (subject to the other provisions of these Conditions) the Goods will substantially correspond with their specification at the time of delivery and will be free from material defects in workmanship for a period of 12 months from delivery.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. Unless otherwise agreed, the Seller gives no warranty as to the fitness of the Goods for any purpose specified by the Seller (including compliance by the Buyer with any legislative or industry requirements applicable to the Buyer, which shall remain the Buyer’s sole responsibility).
10.3 The Seller shall not be liable for a breach of the warranty in condition 10.1 if the:
10.3.1 defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
10.3.2 Buyer alters or repairs the Goods without the written consent of the Seller;
10.3.3 defect arises from fair wear and tear, wilful damage, negligence, abnormal working conditions or misuse;
10.3.4 Buyer makes any further use of the Goods after giving notice of a defect in writing to the Buyer;
10.3.5 defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer;
10.3.6 the defect or imperfection is of a minor or insignificant nature in respect of the Goods; or
10.3.7 Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
10.4 Subject to conditions 10.3 and 10.5 and the Seller’s right to examine such Goods, if any of the Goods do not comply with the warranty in condition 10.1, the Seller’s liability shall be limited (at the Seller’s option) to the repair or replacement of such Goods (or the defective part(s) in question) or the refund of the Price (or a proportionate part of the Price), and the Seller shall have no further liability to the Buyer.
10.5 If the Seller so requests, the Buyer shall, at the Seller’s expense, return the Goods or the defective part(s) in question to the Seller. Any Goods replaced will belong to the Seller and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 12 month period referred to in condition 10.1.
11 LIMITATION OF LIABILITY
11.1 Subject to conditions 7.11, 10.4 and 11.2:
11.1.1 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total sums paid by Buyer for Goods supplied under the Contract; and
11.1.2 the Seller shall not be liable to the Buyer for any:
(a) loss or shortfall in the Goods, or damage caused to the Goods in transit, unless it has been noted in accordance with condition 7.12 and notified to the Seller within seven days of the date of delivery (to the extent that such loss, shortfall or damage is not covered by the warranty at condition 10.1);
(b) loss incurred by the Buyer which arises as a direct or indirect result of any of the Goods being broken into or entry into any Goods being forced (including any attempts to do so);
(c) loss incurred by the Buyer in the circumstances described in condition 10.3;
(d) loss incurred by the Buyer in relation to bespoke Goods manufactured by the Seller pursuant to a Special Order which does not comply with condition 4.1, or which arises due to the Buyer’s failure to comply with its obligations under condition 4.2; or
(e) pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11.2 Nothing in these Conditions excludes or limits the liability of the Seller for:
11.2.1 death or personal injury caused by the Seller’s negligence;
11.2.2 fraud or fraudulent misrepresentation; or
11.2.3 which the Seller cannot exclude or limit its liability under applicable laws.
12.1 The Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if:
12.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being a firm) become bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);
12.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the Buyer’s property or assets; or
12.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
12.1.4 the Seller reasonably believes that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly.
12.2 If this condition 12 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or any other contract between the Seller and the Buyer, or suspend any further deliveries of Goods under the Contract or any other contract between the Seller and the Buyer without any liability to the Buyer, and if Goods have been delivered but have not paid for the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12.3 On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Seller's outstanding unpaid invoices and interest.
12.4 Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
12.5 Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
13 FORCE MAJEURE
13.1 The Seller shall not be liable for any failure to perform or delay in performance of its obligations under the Contract due to any Force Majeure Event. If any Force Majeure Event delays or prevents the Seller’s performance of its obligations for a continuous period of 3 months then either party may, at its discretion terminate the Contract by written notice at the end of such period.
14.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
14.2 The Seller may assign the Contract or any part of it to any person.
15.1 No variation of these Conditions or the Contract shall be valid unless made in writing and signed by or on behalf of the Seller.
15.2 If any provision or part-provision of the Contract shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid and enforceable. If such modification is not possible, the relevant provision or part-provisions shall be deemed deleted. Any such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions of the Contract which shall remain in full force and effect.
15.3 For the purposes of the Contracts (Rights of Third Parties) Act 1999, the parties do not intend any person other than a party to the Contract to be able to enforce any term of the Contract (save where may be expressly stated otherwise in the Contract).
15.4 All notices under the Contract shall be:
15.4.1 in writing and addressed, in the case of the Buyer, to the intended delivery address or by email to the email address provided as part of the Order or Special Order, and, in the case of the Seller, to its registered office or such other address as it notifies the Buyer from time to time, or by email to [email protected];
15.4.2 deemed to have been duly given when delivered to the address referred to in condition 15.4.1, if delivered by messenger during normal business hours of the recipient; or on the second Business Day following mailing, if sent by first class pre-paid recorded delivery post; or at the time of transmission if sent by email.
15.5 The provisions of condition 15.4 shall not apply to the service of any proceedings or other documents in any legal action.
15.6 English law governs the Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes) and the parties irrevocably submit to the exclusive jurisdiction of the English courts in respect of any such dispute or claim.