The customer's attention is drawn in particular to the provisions of clause 12
In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 14.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Force Majeure Event: has the meaning given in clause 13.
Graded Goods: Goods which show signs of cosmetic damage.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer's order for the Goods, as agreed either verbally by the Customer; or in the Customer’s purchase order form in writing; or through the Supplier’s Website.
Supplier: John Gillman & Sons (Electrical) Limited trading as Domestic Appliance Distributors (D.A.D) whose registered office is Mercia Road, St. Oswalds, Gloucester GL1 2SG (registered in England and Wales with company number 1670406).
Raw Stock: Goods which are faulty and may show signs of cosmetic damage.
In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) 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.
(e) A reference to writing or written includes faxes and e-mails.
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 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 is complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier communicates to the Customer acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer.
The Goods are described in the Supplier's catalogue, brochures and Website.
4. CONDITIONS OF ORDERING
4.1 The Supplier will deliver the Goods ordered free of charge subject to the Goods meeting a minimum value as decided from time to time by the Supplier (Minimum Order Value). Orders not meeting the Minimum Order Value will be subject to a delivery charge as advised by the Supplier at the time of placing the Order.
4.2 All new account sales will be strictly on a cleared funds basis until credit facilities have been agreed by the Supplier in writing.
4.3 On cleared funds accounts no Goods will be despatched until cleared funds have been received. Credit and debit cards are not classified as cleared funds, neither is cash paid directly into the Supplier’s bank account.
4.4 If the Customer’s account with the Supplier is:
(a) a cleared funds account; or
(b) the Customer’s credit limit on that account has been reached; or
(c) the Customer has not paid the Supplier in accordance with clause 10.6,
any Goods so ordered will only be released once satisfactory agreement has been reached with the Supplier.
5.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows all relevant Customer and Supplier reference numbers, the type and quantity of the Goods.
5.2 The Supplier and Customer shall agree to either of the following methods of delivery:
(a) The Supplier or the Supplier’s third party carrier or agent shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) from time to time; or
(b) The Customer or the Customer’s third party carrier or agent shall collect the Goods from the Supplier’s premises at Henry John House, Northway Lane, Ashchurch, Tewkesbury, Gloucestershire, GL20 8JH or such other location as may be advised by the Supplier prior to delivery (Delivery Location) within a reasonable time of the Supplier notifying the Customer that the Goods are ready.
5.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
5.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.5 The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.6 If the Customer fails to take or accept delivery of the Goods once of the Supplier notifies the Customer that the Goods are ready (Failed Delivery), then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract, the Supplier reserves the right to charge the Customer 15% of the price of the Goods.
5.7 After a Failed Delivery the Supplier reserves the right to cancel the Order and may resell part or all of the Goods.
5.8 A Failed Delivery as referred to in clause 5.6 includes:
(a) the Customer failing to provide the Supplier with a delivery date; or
(b) failure by the Customer to accept the Goods on arrival at the Delivery Location in accordance with clause 5.2(a); or
(c) failure by the Customer to take the Goods from the Delivery Location within 20 Business Days of being notified by the Supplier that the Goods are available in accordance with clause 5.2(b).
5.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6. WARRANTIES AND GUARANTEES
6.1 The Supplier shall pass to the Customer all warranties and guarantees given by the manufacturer or the manufacturers of the Goods but otherwise the Supplier does not sell the Goods subject to any warranty condition or stipulation either express or implied by common law or by statute is hereby expressly excluded.
6.2 Subject to clause 6.3, if:
(a) the Customer gives notice in writing to the Supplier within 3 Business Days of discovery, within the warranty period as set out in any warranties so supplied in accordance with clause 6.1, that some or all of the Goods do not comply with a warranty or guarantee;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Supplier’s cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.3 The Supplier shall not be liable for Goods' failure to comply with the warranty in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 6;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the Customer alters or repairs such Goods without the written consent of the Supplier;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(e) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.4 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty.
6.5 The Supplier does not sell Raw Stock subject to any warranty, condition or stipulation either express or implied by common law or by statute is hereby expressly excluded.
6.6 The Supplier will not accept liability under this clause 6 for Goods exported outside of mainland UK.
6.7 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.
6.8 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
7. DAMAGES AND SHORTAGES
7.1 Any claim by the Customer that Goods received are damaged shall be notified to the Supplier in writing within 3 Business Days from date of delivery. If the Customer does not notify the Supplier accordingly, the Supplier shall have no liability for the damage, and the Customer shall be bound to pay the Supplier’s charges for the supply of the Goods.
7.2 If the Supplier is informed of the damage within 3 Business Days from the date of delivery the item will be either replaced with a replacement or repaired by the Supplier at the Supplier’s cost. If the Supplier cannot replace or repair the Goods, the Supplier will credit the Customer with the price of the Goods.
7.3 The Supplier will not be liable for damage due to faulty and/or improper installation of the Goods if carried out by the Customer or a third party acting as agent for the Customer.
7.4 The Supplier shall not be liable for damage to Goods in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 7; or
(b) the damage arises because the Customer failed to act properly and reasonably as to the storage, commissioning, transportation, installation, use and maintenance of the Goods; or
(c) the damage arises as a result of wilful damage, negligence, or abnormal storage or working conditions.
7.5 The Supplier must be given notice by the Customer if there are any quantity discrepancies within 3 Business Days from the date of delivery.
7.6 The Supplier will not accept liability for damage under this clause 7 for Graded Goods or Raw Stock.
7.7 The Supplier will not accept liability under this clause 7 for Goods exported outside of mainland UK.
8.1 The Customer may within 3 Business Days of placing the Order amend or cancel the Order by informing the Supplier in writing. If the Customer amends or cancels the Order the Supplier reserves the right to charge the Customer 15% of the price of the Goods.
8.2 Return of non-faulty Goods by the Customer will only be allowed once satisfactory agreement has been reached with the Supplier and will be subject to a restocking charge decided from time to time by the Supplier.
8.3 Goods which are supplied but not stocked by the Supplier (Special Goods) cannot be amended or cancelled by the Customer after the Special Goods have been received by the Supplier. Once the Special Goods are received by the Supplier the Customer shall be bound to pay the Supplier’s charges for the Special Goods.
9. TITLE AND RISK
9.1 The risk in the Goods shall pass to the Customer on completion of delivery as set out in clause 5.
9.2 Notwithstanding delivery and the passing of risk in the Goods title and property in the Goods, including full legal and beneficial ownership, shall not pass to the Customer until the Supplier has received payment in full (in cleared funds) for all Goods delivered to the Customer under this and all other contracts between the Customer and the Supplier for which payment of the full price of the Goods thereunder has not been paid. Payment of the full price of the Goods shall include the amount of any interest or other sum payable under the terms of this and all other contracts between the Supplier and the Customer under which the Goods were delivered.
9.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier's bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property; (c) not remove, deface or obscure any identifying mark on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 11.2; and
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
9.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 11.2, or the Supplier 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 Supplier may have, the Supplier 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.
10. PRICE AND PAYMENT
10.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of order.
10.2 The Supplier may, by giving notice to the Customer at any time up to 3 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
10.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
10.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
10.5 The Supplier may invoice the Customer for the Goods on despatch or at any time after the completion of delivery.
10.6 The Customer shall pay the invoice in full and in cleared funds within 30 Days of the date of the invoice. Time of payment is of the essence.
10.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above Lloyds TSB Bank's base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
10.8 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 Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier 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 Supplier to the Customer.
11. CUSTOMER'S INSOLVENCY OR INCAPACITY
11.1 If the Customer becomes subject to any of the events listed in clause11.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
11.2 For the purposes of clause 11.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(g) (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.2(a)to clause 11.2(h) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
11.3 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
12. LIMITATION OF LIABILITY
12.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
12.2 Subject to clause 12.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 5%of the price of the Goods.
13. FORCE MAJEURE
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. 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.
14.1 Assignment and subcontracting
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
(a) 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 (if it is a company) or its principal place of business (in any other case) 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, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.2(a); 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 or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) 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.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
A waiver of any right or remedy under the Contract is only effective if given in writing by a Director of the Supplier 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.
14.5 Third party rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
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 a Director of the Supplier.
14.7 Governing law and jurisdiction
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 or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.