Wallgate Limited (“the Company”) - Terms and Conditions
1.1. “Conditions” means the terms and conditions set out in this document.
1.2. “Contract” means the contract between the Company and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
1.3. “Goods” means the goods set out in the Order.
1.4. “Customer” means the legal party who purchases the Goods from the Company.
1.5. “Wallgate Quality Standards” means collectively those international and British Standards and Wallgate's Aesthetic Quality Standard, details of which are available from Wallgate on request.
1.6. "Pro Forma Order" means an order for a product from a Customer without a credit account agreement or agreed credit terms with the Company.
2.1. These conditions apply to the exclusion of any conditions proposed by the Customer, and to the exclusion of any other terms implied by trade, custom, practice or course of dealing and may not be varied without the written consent of the Company.
3.1. Quotations whether written or oral shall not constitute an offer.
3.2. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
3.3. The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
3.4. Acceptance of an Order, whether pursuant to a Quotation or not, is at the Company’s discretion and credit account applications may be subject to satisfactory credit references.
4.1. Lead times quoted by the Company for delivery of the Goods are an estimate only and time for delivery is not of the essence.
4.2. The Customer may request that dispatch of an Order (or part of an Order) be delayed by up to four weeks following the Company's estimated delivery date (or for any period thereafter subject to the Company's prior agreement in writing) provided that any such delay shall not affect the Customer's obligation to pay for the Goods in accordance with clause 6.
4.3. If the Company fails to deliver the Goods, its 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. In any event, the Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure event (as defined in clause 17) or the Customer’s failure to provide the Company with any instructions that are relevant to the supply of the Goods.
4.4. If the Customer or the Customer’s agent fails to accept delivery of the Goods, the Goods will be returned to the Company’s place of business for collection by the Customer.
4.5. If the Customer fails to collect the Goods within three days of the Company notifying the Customer that the Goods are ready for collection, then:
4.5.1. subject to any deferred delivery date pursuant to clause 4.2, delivery of the Goods shall be deemed to have been completed at 9.00 am on the third day after the day on which the Company notified the Customer that the Goods were ready; and
4.5.2. the Company shall store the Goods until the Customer collects the Goods, and charge the Customer a storage fee and any related costs and expenses (including insurance) at such rates as may be notified by the Company to the Customer from time to time.
4.6. If 10 days after the day on which the Company notified the Customer that the Goods are ready for collection under clause 4.5, 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, transport and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.1. Further to 3.1 above, for offers made within 28 days of a quotation, the actual price charged to the Customer will be that quoted by the Company. Offers made outside this period may be subject to change.
5.2. Unless otherwise agreed by the Company in writing, the price for the Goods shall be exclusive of VAT or other duty payable on the Goods.
5.3. Unless otherwise agreed by the Company in writing, where the Goods are delivered in the UK (save for Northern Ireland, the Channel Islands, and the Isle of Man), the price for the Goods shall be inclusive of all costs and charges in relation to packaging, loading, carriage and insurance.
5.4. Unless otherwise agreed by the Company in writing, where the Goods are delivered to Ireland, Northern Ireland, the Channel Islands, the Isle of Man, or outside the UK, the price for the goods shall be exclusive of all costs and charges in relation to packaging, loading, carriage, insurance, customs, all of which amounts the Customer shall pay in addition when it is due to pay for the Goods.
5.5. Unless otherwise agreed by the Company in writing, the price for the Goods shall be paid in the currency stated in the quotation.
5.6. Notwithstanding clause 5.7 the Company shall be entitled to alter the price for the Goods by giving the Customer not less than 90 days prior notice in writing.
5.7. The Company shall be entitled to review and update any quotation if a relevant currency exchange rate fluctuates by at least ten per cent from the relevant exchange rate published on the date of such quotation.
6. INVOICING AND PAYMENT
6.1. Where credit terms have been agreed in writing between the Company and the Customer, payment for the price for the Goods is due in cleared funds no later than 30 days of the date of the invoice for the Goods.
6.2. Save as provided in the Order or Quotation, where credit terms have not been agreed in writing between the Company and the Customer:
6.2.1. For Pro Forma Orders in excess of £10,000 by Customers based in the UK, the Company shall invoice the Customer for the Goods at the time the order is accepted, such invoice to be paid in cleared funds as to 50% on order and 50% prior to the date of dispatch;
6.2.2. For Pro Forma Orders by Customers based outside of the UK, the Company shall invoice the Customer for the Goods in full at the time the order is accepted, such invoice to be paid in cleared funds prior to the date of dispatch;
6.2.3. For all other orders, the Company shall invoice the Customer for Goods upon dispatch (or, if the date of dispatch is delayed by the Customer under clause 4.2, on the date that the order or part thereof is ready to be dispatched), such invoice to be paid in cleared funds no later than 30 days of the date of the invoice for the Goods.
6.3. Where payment is made by company or business credit card, the Customer also agrees to pay a handling fee of 2% (or such other amount as determined by the Company from time to time) on the sum paid. Customers who purchase from the Company as consumers will not be charged this fee.
6.4. Time of payment is of the essence.
6.5. In the event of default in payment by the Customer then, without prejudice to any other remedy:
6.5.1. Title to the Goods shall not pass to the Customer;
6.5.2. The Company shall be entitled to suspend all further deliveries of the Goods;
6.5.3. The Customer shall pay interest on the overdue amount at the rate of 8% over the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the date of invoice to the date of final settlement, whether before or after judgment. The Customer shall pay interest together with the overdue amount; and
6.5.4. 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.
6.6. No payment shall be deemed to have been received until the Company has received cleared funds.
6.7. All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision to the contrary.
7.1. The Company warrants that on delivery, and for a period of 12 months thereafter (warranty period), the Goods shall:
7.1.1. conform in all material respects with their description;
7.1.2. be free from material defects in design, material and workmanship;
7.1.3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979);
7.1.4. be fit for any purpose held out by the Company; and
7.1.5. Products that conform to Wallgate Quality Standards shall be deemed free from material defects in design, material and workmanship.
7.2. Subject to clause 7.3, if:
7.2.1. the Customer gives notice in writing to the Company during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 7.1;
7.2.2. the Company is given a reasonable opportunity of examining such Goods; and
7.2.3. the Customer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Customer's cost, the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
7.3. The Company shall not be liable for the Goods' failure to comply with the warranty set out in clause 7.1 in any of the following events:
7.3.1. the Customer makes any further use of such Goods after giving notice in accordance with clause 7.2;
7.3.2. the defect arises because the Customer failed to follow the Company's oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice;
7.3.3. the defect arises as a result of the Company following any drawing, design or specification supplied by the Customer;
7.3.4. the Customer alters or repairs such Goods without the written consent of the Company;
7.3.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
7.3.6. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.4. Except as provided in this clause 7, the Company shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 7.1.
7.5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
7.6. These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
7.7. Once an order has been accepted by the Company it shall be fixed and binding subject to these Conditions.
7.8. Orders for standard products which have not been made or adapted to order for the Customer may only be cancelled by the Customer:
7.8.1. prior to dispatch by notice in writing to the Company and subject to payment by the Customer to the Company of an administration charge of 25% of the net price of the Goods;
7.8.2. following dispatch with the prior written authorisation of the Company and subject to:
220.127.116.11. the Goods being returned to the Company at the Customer's cost in a brand new and unused condition (including unbroken packaging);
18.104.22.168. the Goods being returned within 14 days of delivery;
22.214.171.124. the Customer paying to the Company an administration charge of 25% of the net price of the Goods; and
126.96.36.199. the Goods being subject to inspection and testing before any credit note is issued and the Company may add further charges for any remedial repairs that are necessary.
7.9. Orders for products made to order for the Customer including standard products adapted for the Customer's requirements may not be cancelled once dispatched and prior to dispatch may only be cancelled by the Customer with the prior written authorisation of the Company subject to payment by the Customer to the Company of an administration charge equal to the higher of (i) 25% of the net price of the Goods and (ii) the costs incurred by the Company for any work carried out or parts ordered prior to cancellation on a labour and materials basis.
8.1. Liability cannot be accepted for delays or for the non-execution of the Contract either in whole or in part due to causes beyond the Company’s control.
8.2. Any contract completion date is subject to the Company receiving all necessary instructions and to receiving all necessary equipment from their suppliers and to compliance by the Customer with all these conditions.
9.1. The risk in the Goods shall pass to the Customer on completion of delivery.
9.2. Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the Goods: and all other sums which are or which become due to the Company from the Customer on any account. Until ownership of the Goods has passed to the Customer, where the Customer has collected the Goods, the Customer shall:
9.2.1. hold the Goods on a fiduciary basis as the Company’s bailee;
9.2.2. store the Goods (at no cost to the Company) separately from all other goods for the Customer or any third party in such a way that they remain readily identifiable as the Company’s property;
9.2.3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
9.2.4. maintain the Goods in a satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks, to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company.
9.3. The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the goods are, or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated to recover them.
9.4. Subject to clauses 9.5 and 9.6, the Customer may resell the Goods in the ordinary course of its business at full market value (but not otherwise) to a third party (a "Resale Client") before the Company receives payment for the Goods. However, if the Customer resells the Goods before that time:
9.4.1. it does so as principal and not as the Company’s agent; and
9.4.2. title to the Goods shall pass from the Company to the Customer immediately before the time at which resale by the Customer to a Resale Client occurs.
9.5. At any time before title to the Goods passes to the Customer, the Supplier may:
9.5.1. by notice in writing, terminate the Customer's right under clause 9.4 to resell the Goods; and
9.5.2. require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product 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.
9.6. If before title to the Goods passes to the Customer the Customer becomes subject to any insolvency proceedings, 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.
9.7. In the event that the Customer chooses to resell the Goods to a Resale Client:
9.7.1. the Customer does so solely at its own option and risk and, save for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability:
188.8.131.52. the Company shall have no liability whatsoever to any Resale Client in respect of any Goods which are resold ("Resale Goods"), whether under the terms of this Contract or otherwise; and
184.108.40.206. no warranty given by the Company to the Customer in respect of any Goods shall be extended or given by the Company to any Resale Client in respect of any Resale Goods or otherwise; and
9.7.2. the Customer shall:
220.127.116.11. obtain any necessary import licences or permits necessary for the entry of the Resale Goods into the territory into which the Resale Goods are being resold (the "Territory") or their delivery to a Resale Client;
18.104.22.168. perform all custom formalities and pay in full any custom duties, clearance charges, taxes, brokers' fees and other amounts payable in connection with the importation and delivery of the Resale Goods into the Territory;
22.214.171.124. be solely responsible for ensuring that any Resale Goods comply in all respects with all applicable laws and regulations from time to time in force in the Territory into which the Resale Goods are sold or otherwise supplied by the Customer to a Resale Client; and
126.96.36.199. be solely responsible for ensuring that the Resale Goods comply in all respects with any and all technical and other contractual requirements stipulated by a Resale Client under the terms of sale or procurement terms for such Resale Goods, and the Company shall have no responsibliy for, or liability to the Customer or any Resale Client in respect of, any matter set out in this clause 9.7.2 (whether or not the Company had been informed of the Territory where the Resale Goods would be supplied and/or of the Resale Client’s technical and/or contractual requirements).
9.8. The Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses suffered or incurred by the Company arising out of or in connection with:
9.8.1. any breach by the Customer of the terms of clause 9.7; or
9.8.2. any claim made against the Company arising out of or in connection with the sale or supply by the Customer of any Resale Goods to any Resale Client and/or into the Territory, whether such claim relates to a matter contained in clause 9.7 or otherwise.
10.1. The Company shall not be bound by any oral condition warranty or representation made or given on its behalf unless confirmed in writing and in the absence of any written confirmation these conditions shall form the entire Contract between the Company and the Customer.
10.2. Unless otherwise agreed in writing, the intellectual property rights of all design work and drawings, special tools, computer hardware, software and firmware, jigs and moulds used in the production of bespoke products belong to the Company, will not be deemed deliverables as part of the Contract and will remain the property of the Company.
11. LIMITATION OF LIABILITY
11.1. Nothing in these Conditions excludes or limits the liability of the Company for:
11.1.1. death or personal injury caused by the Company’s negligence or the negligence of its employees, or,
11.1.2. under Section 2(3), Consumer Protection Act 1987, or
11.1.3. for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability, or
11.1.4. for fraudulent misrepresentation, or
11.1.5. breach of the terms implied by section 12 of the Sale of Goods Act 1979.
11.2. Subject to clause 11.1:
11.2.1. The Company’s total liability whether 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 price of the Goods.
11.2.2. The Company shall not be liable to the Customer for loss of use or corruption of software, data or information, loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (however caused) which arise out of any connection with the contract.
11.2.3. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by Section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the contract.
12. THE COMPANY’S RIGHT TO TERMINATE THE CONTRACT
The Company shall have the option (without prejudice to any of its other rights against the Customer) by notice in writing to the Customer to rescind any Contract between the Company and the Customer and/or to suspend delivery in the following events: should any sum owing by the Customer to the Company be overdue whether under the same or any other contract; should the Customer be in breach of any term of the same or any other Contract with the Company; should the Customer enter into any composition or arrangement with or for the benefit of his creditors, having a receiving order in bankruptcy made against him or (if a corporate body) should it have a resolution passed or petition to wind up its business (other than for the purpose of amalgamation or reconstruction) or if a receiver or administrator or administrative receiver be appointed of its undertaking, property or assets or any part thereof or if any cheque or bill of exchange given by the Customer shall be refused payment for whatever reason by the Customer’s bankers.
13. INFRINGEMENT OF PATENTS
When goods are manufactured by the Company in accordance with the Customer’s specifications, the Customer shall indemnify the Company against all costs, claims and expenses incurred by the Company in respect of the infringement or alleged infringement by such goods of any patents registered designs or other rights belonging to third parties.
14. QUALITY OF GOODS MANUFACTURED BY THIRD PARTIES
Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Company.
15.1. In addition to any right of lien to which the Company may be law entitled, (in the event of the Customer’s insolvency):
15.1.1. the Company shall be entitled to a general lien on all goods of the Customer in the Company’s possession (although such goods or some of them may have been paid for) any sums due to the Company whether invoiced or not, under the same or any other Contract.
15.1.2. the Company shall be entitled to cancel or suspend all further deliveries under the Contract or any other contract between the Customer and the Company without incurring any liability to the Customer; and
15.1.3. all outstanding sums in respect of Goods dispatched to the Customer shall become immediately due.
16. INDEMNITY AND ACCESS
16.1. In the case of works done by the Company (including but not limited to its agents and sub-contractors) on the premises of the Customer or the Customer’s buyer the Customer warrants to the Company that it will provide a safe system of working at the said premises. The Customer will arrange access to the premises at such times as shall reasonably be required by the Company.
16.2. The Customer warrants that the Customer and his buyer (if applicable) are fully and effectually insured against all loss resulting from any negligence on the part of the Customer or his buyer (if applicable) and indemnifies the Company to that effect. The Customer agrees to produce, immediately on demand by the Company, evidence of such insurance (including, but not limited to, a copy of the insurance certificate and policy).
17. FORCE MAJEURE
17.1. Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.
17.2. 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.
18. GOVERNING LAW AND JURISDICTION
The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
19. RIGHTS OF THIRD PARTIES
The parties to the Contract do not intend that any terms of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not party to it.
If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
22.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier or fax.
22.2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 22.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax one Business Day after transmission.
22.3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Company.