BANNER HARDWARE LTD
TERMS & CONDITIONS OF SALE
In these conditions: “Buyer” means the person who accepts a quotation of the Seller for the Goods, or whose order for the Goods is accepted by the Seller. “Goods” means the Goods (including any instalment of the Goods or any parts for them) which the Seller is to supply in accordance with these Conditions. “Seller” means Banner Hardware Limited (registered in England under number 01984649). “Conditions” means the standard terms and conditions of sale set out in this document below and, unless the context requires otherwise, includes any special terms and conditions agreed in writing between the Buyer and the Seller. “Contract” means the contract for the purchase and sale of the Goods. “Writing” includes telex, email, online messages, SMS messages, cable, facsimile transmission and comparable means of communication. Any reference in these Conditions to any provision of a statute shall be constructed as a reference to that provision as amended, re-enacted or extended at the relevant time. The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. BASIS OF SALE
The Seller shall sell and the Buyer shall purchase the Goods subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any quotation is accepted, or any order is made or purported to be made by the Buyer. No variation to these Conditions shall be binding on the Seller unless agreed in writing by the authorised representative of the Seller. Any advice or recommendation given by the Seller or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any advice or recommendation which is not so confirmed. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. ORDERS AND SPECIFICATIONS
The Seller reserves the right to supply Goods in the nearest standard pack, box or carton quantity available. The Seller reserves the right to make any changes in the specification of the Goods which do not materially affect their quality or performance.
4. PRICE OF THE GOODS
The price of the Goods shall be the Seller’s ruling at the date of despatch. The price is exclusive of any applicable Value Added Tax, which the Buyer shall be additionally liable to pay to the Seller. All prices are in pounds sterling.
5. TERMS OF PAYMENT
Subject to any special terms agreed in writing between the Buyer and the Seller, payment for the Goods shall be made by the Buyer to the Seller no later than 30 days following the date of the Seller’s invoice. The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) within the period specified, notwithstanding that delivery may not have taken place and the property in the Goods has passed to the Buyer. The time of payment of the price shall be of the essence of the contract. Receipts for payment will be issued only upon request. If the Buyer fails to make any payment on the due date, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to: cancel the contract or suspend any further deliveries to the Buyer; appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and charge the Buyer interest (both before and after any judgement) from the date of the invoice on the amount unpaid, at the rate of 3% per annum above the Lloyds TSB Bank plc base rate, together with all reasonable debt recovery costs, until the payment is made in full, (a part of a month being treated as a full month for the purpose of calculating interest).
Delivery of the Goods shall be made by the Seller delivering the Goods to the Buyer’s premises within the United Kingdom mainland, or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place. Any dates quoted for delivery of the Goods are approximate only, and the Seller shall not be liable for any delay of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. Any shortage in the amount of Goods supplied at delivery must be notified to the Seller and confirmed in writing within five working days of delivery. Any order for an amount in excess of £75 (excluding VAT) will be delivered in England and Wales without charge (£100 for Scotland), but carriage will be charged on all orders under £75 (£100 for Scotland) at a rate of £6 (excluding VAT) per carton. If at the time for delivery the Seller does not have the Goods in stock which have been ordered by the Buyer, the Seller reserves the right to cancel the Contract on giving notice to the Buyer. Customs clearance charges are the responsibility of the Buyer.
7. RISK AND PROPERTY
Risk of damage to or loss of the Goods shall pass to the Buyer: in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or, in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery; or, if the Buyer wrongfully fails to take delivery of the Goods, at the time when the Seller has tendered delivery of the Goods. Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions: the property in 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 the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of all sums due to the Seller on any account. The Buyer acknowledges and agrees in relation to the Goods: the existence of an immediate, binding, fiduciary relationship between itself and the Seller in relation to the Goods; and that the Buyer is in possession of the Goods solely as fiduciary bailee for the Seller until such time as the property in the Goods passes to the Buyer. Until such time as the property in the Goods passes to the Buyer: the Buyer shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected, insured and identified as the Seller’s property; 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 forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
8. WARRANTIES AND LIABILITIES
Subject to the conditions set out below the Seller warrants that the Goods will be free from defects in material and workmanship for a period of 14 days from the date of delivery. The above warranty is given by the Seller subject to the following conditions: the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer; the Seller shall be under no liability in respect of any defect arising from wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval, the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment. Subject as expressly provided in these Conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977). All warranties, conditions or any other terms implied by the statute or common law are excluded to the fullest extent permitted by law. Where the Goods are sold under a consumer transaction, as defined by the Consumer Transactions (Restrictions on Statements) Order 1976, the statutory rights of the Buyer are not affected by these Conditions. Any claim by the Buyer which is based on any defect in the quality or condition of the Goods shall (whether or not delivery is refused by the Buyer) be notified to the Seller within five working days from the date of delivery, or, where the defect or failure was not apparent on reasonable inspection, within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods, and the Seller shall have no liability for such defect of failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. Where any valid claim in respect of any of the Goods, which is based on any defect in the quality of condition of the Goods, is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge, or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer. Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or the use or release of the Goods or their use or release by the Buyer, except as expressly provided in these Conditions. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control: Act of God, explosion, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party); difficulties in obtaining the Goods from the Seller’s suppliers, raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery.
9. INSOLVENCY OF BUYER
This clause applies if: the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes for amalgamation or reconstruction); or an encumbrancer takes possession, or a receiver is appointed over any of the property or assets of the Buyer; or the Buyer ceases, threatens to cease, to carry on business; or the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly. If this clause applies, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and, if the Goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10. RETENTION OF TITLE
The property in any goods sold to the Customer shall not pass until the Company has received, in cash or cleared funds, payment in full of the price of the goods and any other good sold to the Customer in the past. Until such time as the property in the goods passes to the Customer the Customer shall hold the Goods as the Company's fiduciary agent and bailee, and although the Customer shall be entitled to resell or use the goods in the ordinary course of its business, it shall account to the Company for the proceeds of sale of the goods and keep such proceeds separate from any monies or property of the Customer.
The Buyer shall indemnify and keep the Seller indemnified from and against any liability of any kind to any third party howsoever arising (whether in contract tort or otherwise and including, but not limited to, liability arising from the negligence of the Seller or from the negligence of any person for whom the Seller is vicariously liable) in respect of or in connection with: any defect in the Goods; any loss, injury, or damage of any kind (whether direct, indirect, or otherwise, and including but not limited to any loss of profit and/or any incidental, consequential or special loss or damage of any description) arising out of, in respect of, or in connection with the Goods or their purchase, use, operation or resale.
No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. In the event of any of the words, provisions, terms and/or conditions herein contained being unenforceable or void for any reason whatsoever, each word, provision, term and/or condition (including any paragraph or sub-paragraph herein contained) shall be deemed to be severable from the remaining words, provisions, terms and/or conditions, and such remaining words, provisions, terms and/or conditions shall remain in full force and effect. The Contract shall be deemed to have been made in England, the law applicable to it is the law of England, and the parties agree to submit to the non-exclusive jurisdiction of the English courts.