1(a). All orders placed with Evolution Fasteners UK Limited (“the Company”) by the Company’s customer (“the Buyer”) for the sale and the purchase of goods (“the Goods”)are subject to the terms and conditions set out below which shall constitute the contract between the Company and the Buyer (“the Contract”). No modifications or variations to these terms and conditions and no other terms and conditions shall be valid or effective unless expressly accepted in writing by a director of the Company.
1(b). Any subsequent orders placed with the Company shall be deemed to be placed subject to these terms and conditions unless expressly agreed otherwise in writing by a Director of the Company.
2. A quotation by the Company does not constitute an offer and the Company reserves the right to withdraw or amend the same at any time prior to the Company’s acceptance of the Buyer’s order. The Buyers purchase order is binding and the Buyer is responsible for costs arising from any changes of nature to the order.
3. The price of any goods shall be the Company's list price of the goods prevailing at the date of acceptance of the order by the Company (less any agreed discount).
4. Unless otherwise stated all prices are exclusive of V.A.T.
5. The Company shall be entitled from time to time to vary list price or list prices without prior notice.
6. Unless otherwise specified in writing by the Company, payment is due on or before the end of the month following that in which the goods were invoiced.
7. Failure by the Buyer to pay for any goods on the due date shall entitle the Company:
7(a). to cancel the balance (if any) of the contract under which the Buyer has failed to pay for the goods and to recover from the Buyer damages for any loss suffered by the Company as a result of such cancellation, and/or
7(b). to cancel any other contract or the balance of any other contract which the Company may have with the Buyer and to recover from the Buyer damages for any loss suffered by the Company as a result of such cancellation, and/or
7(c). to charge the Buyer interest at the rate of 2.5% per month calculated on a day-to-day basis on the amount due from the date of invoice to the date of actual payment thereof (both before and after any judgement) such interest to be paid on demand.
8. The Company reserves the right to close a credit account at any time without prior notice whereupon the whole of the amount outstanding on such account shall become immediately due and payable in full.
Collection and Delivery
9. Where the Company agrees to deliver any goods to the Buyer:
9(a). The Buyer shall pay the Company's delivery charges therefore at the rate or rates prevailing at the date of acceptance of the order by the Company or at such other rate or rates as may be agreed between the Company and the Buyer prior to the date of acceptance of the order by the Company.
9(b). Delivery of the goods shall be made to such place or places as agreed between the Company and the Buyer.
9(c). The Buyer will ensure that there is adequate access to the place of delivery and that there is made available at the place of delivery adequate labour and other facilities in order to enable the goods to be unloaded promptly and safely and the Buyer will indemnify the Company in respect of any losses costs and expenses incurred by the Company as a consequence thereof and (without prejudice to the generality of the foregoing) the Company shall be entitled to charge the Buyer for the storage of the goods whether at the Company's premises or otherwise.
9(d). If the Buyer shall refuse for any reason whatsoever to accept delivery of the goods the Buyer will indemnify the Company in respect of all losses costs and expenses incurred by the Company as a consequence thereof and (without prejudice to the generality of the foregoing) the Company shall be entitled to charge the Buyer for the storage of the goods whether at the Company's premises or otherwise.
9(e). The Company shall be entitled to make part deliveries of the goods and for the purposes of these terms and conditions each such part delivery shall be treated as a separate and independent contract for the sale of goods to the Buyer.
10(a). Any times stated for collection or delivery shall be a bona fide estimate only and whilst the Company will use all reasonable endeavours to meet any such times stated the Company shall not be liable for any delay howsoever caused.
10(b). Where no times are stated for collection or delivery the Company will use all reasonable endeavours to make the goods available for collection or to deliver the goods (as the case may be) as soon as reasonably practicable.
10(c). The Company shall be entitled to stop collection by or to withhold delivery to the Buyer of any goods where at the time collection or delivery payment is due to the Company in respect of any goods supplied to the Buyer under any contract whatsoever.
Damage or Loss in Transit
11. Where the Company is responsible for delivering the goods to the Buyer the Company will at its option repair or replace free of charge any goods lost or damaged in transit provided that:
11(a). (save in respect of a total loss or non-delivery of the goods) details of any loss or damage have been marked on the copy of the consignment note or delivery documents signed by the Buyer and advised to the Company within 48 hours of delivery and confirmed in writing to the Company with full particulars within 3 days of delivery, and
11(b). in respect of a total loss or non- delivery of the goods details are advised to the Company in writing (otherwise than on a consignment note or delivery document) with full particulars within (7 days) of the date of the Company's invoice in respect of the goods.
12. The Company shall not be responsible for any short delivery unless details thereof are marked on the consignment note or delivery document signed by the Buyer and in the case of loss in transit all the requirements set out in Condition 11(b) above are fulfilled.
13. Where the Company has notified the Buyer that the goods are ready for delivery, the Buyer shall take delivery or arrange for storage. If the Buyer does not so take delivery or arrange for storage within 7 days of notification the Company shall be entitled to invoice and be paid for the goods as though the goods had been duly delivered in accordance with these instructions and the Company may arrange storage either at the Company’s own premises or elsewhere on the Buyer’s behalf and all charges for storage, insurance and demurrage shall be payable by the Buyer.
14. The Company shall at their option repair or replace any goods which are defective as to materials or workmanship provided that:
14(a). where any alleged defect is discoverable on an inspection of the goods (whether or not the Buyer shall actually inspect the goods) notification of the alleged defect with full particulars thereof is received by the Company in writing within 7 days of the date of collection or delivery of the goods and in any other case notification of the alleged defect is received by the Company in writing with full particulars thereof within 10 days of the date of collection or delivery of the goods, and
14(b). the Company is notified in writing with full particulars immediately upon discovery of the alleged defect and is afforded the opportunity of inspecting the goods at the premises of the Buyer or if so required by the Company the Buyer immediately returns the goods to the Company's premises carriage paid (but refundable insofar as the goods are repaired or replaced), and
14(c). any defect is not due to wear and tear neglect abnormal use misuse or improper adjustment.
14(d). The Company shall not be liable for transportation or installation charges, for expense of the Buyers for repairs or replacements or for damages for delay or loss of use or other indirect, incidental or consequential damage of any kind.
15 (a). As against a person dealing as a consumer as defined by Section 2(3) of the Consumer Rights Act 2015 the following provisions apply. The Company is under a legal duty to supply products that are in conformity with its obligations. The box below contains a summary of the Buyer’s key legal rights in relation to the Goods. Nothing in these terms will affect the Buyer’s legal rights.
Summary of the Buyer’s key legal rights
This is a summary of the Buyer’s key legal rights. These are subject to certain exceptions. For detailed information please visit the Citizens Advice website www.adviceguide.org.uk or call 03454 04 05 06
The Consumer Rights Act 2015 says the Goods must be as described, fit for purpose and of satisfactory quality. During the expected lifespan of the Goods the Buyer’s legal rights entitle the Buyer to the following:
a) Up to 30 days: if the Goods are faulty, then the Buyer can obtain an immediate refund.
b) Up to 6 months: if the Goods cannot be repaired or replaced, then the Buyer is entitled to a full refund, in most cases.
c) Up to 6 years: if the Goods do not last a reasonable length of time the Buyer may be entitled to some money back.
See also Exercising your right to change your mind (Consumer Contracts Regulations 2013).
If the Buyer wishes to exercise its legal rights to reject the Goods the Buyer must either return them in person, or post them back, to the Company. The Company will pay the costs of postage or collection. Please telephone the Company for a return label or to arrange collection. The provisions contained in this condition 15(a) do not affect the Buyer’s legal rights in relation to faulty or mis-described products
15(b). As against a person dealing otherwise than as a consumer as defined by Section 2(3) of the Consumer Rights Act 2015 the provisions contained in Condition 14 above shall be accepted in substitution for and to the entire exclusion of all conditions and warranties and liabilities whatsoever whether express or implied by statute (save those implied by virtue of Section 12 of the Sale of Goods Act 1979) common law usage or otherwise.
16. Save and except as expressly stated in Conditions 14 and 15 above the Company shall not be liable for any defect in the Goods or for any injury or loss resulting from the Goods or any defect therein or from any work done in connection therewith whether such liability is due to the negligence of any servant employee or agent of the Company or otherwise.
17. As against a person dealing otherwise than as a consumer as defined by Section 2(3) of the Consumer Rights Act 2015 in the event that the Company shall be liable to repair or replace the Goods, in no circumstances shall the Company’s liability extend beyond the cost of repair or replacing the Goods. In any event, notwithstanding anything contained in the contract, as against such person in no circumstances shall the Company be liable in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatsoever the cause thereof:
18 (a). Where returned Goods are found to be damaged due to the Buyer's fault the Buyer will be liable for the cost of remedying such damage
18 (b). The Company will not accept Goods for credit or rectification unless such return has been pre-authorised by the Company, and the Goods are received by the Company in stock condition, with original packaging and the Company retains the right at its sole discretion whether to accept the return of the Goods or whether to rectify the Goods or whether to issue a credit note in respect thereof.
18 (c). The Buyer shall unless otherwise stated be responsible for the cost of outward and return carriage and insurance of all Goods returned by the Buyer to the Company for rectification or credit which Goods shall be at the risk of the Buyer until actual receipt of the Goods by the Company. The onus of proof of safe delivery shall rest with the Buyer.
18 (d). All Goods returned to the Company by prearrangement and found to contain no fault, will be subject to a 30% restocking charge, providing the Goods are in original stock condition. Any downward variation of this restocking charge shall be at the sole discretion of the Company.
18 (e). No credit shall be allowed for Goods until they have been received complete.
19 (a). The Company shall not be responsible for any loss damage delay or non- performance of any contract arising whether directly or indirectly from any cause outside the control of the Company including (but without prejudice to the generality of the foregoing) any cause arising from or attributable to strike lock-out shortage of labour or materials governmental action civil commotion riots wars sabotage storm flood earthquake drought machinery breakdown failure of plant collapse of structures voluntary or mandatory compliance with any direction request or order of any person having or appearing to have authority whether for defence or other governmental or national purposes inability to obtain raw materials equipment fuel power components or transportation.
19 (b). In the event of any delay or non- performance of any contract arising whether directly or indirectly from any cause referred to in Condition 19(a) above the Company shall be entitled to cancel any contract without payment to the Buyer in respect of any loss or damage or otherwise.
Title and Risk
20.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
20.2 Title to the Goods shall not pass to the Buyer until the earlier of:
20.2 (a). the Company receiving payment in full (in cash or cleared funds) for the Goods and any other goods that the Company has supplied to the Buyer, in which case title to the Goods shall pass at the time of payment of all such sums; and
20.2 (b). the Buyer reselling the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 20.4.
20.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
20.3 (a). store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Company's property;
20.3 (b). not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
20.3 (c). maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
20.3 (d). notify the Company immediately if it becomes subject to any of the events listed in clause 21; and
20.3 (e). give the Company such information relating to the Goods as the Company may require from time to time.
20.4 Subject to clause 20.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Buyer resells the Goods before that time:
20.4 (a). it does so as principal and not as the Company’s agent; and
20.4 (b). title to the Goods shall pass from the Company to the Buyer immediately before the time at which resale by the Buyer occurs.
20.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 21, then, without limiting any other right or remedy the Company may have:
20.5 (a). the Buyer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
20.5 (b). the Company may at any time:
(i). require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(ii). if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
20.6 Each and every sub-clause of this clause shall be deemed to be separate from the remainder of the contract and severable accordingly.
21.1 Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Buyer if:
21.1 (a). the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
21.1 (b). the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
21.1 (c). the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
21.1 (d). the Buyer's financial position deteriorates to such an extent that in the Company's opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
21.2 Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Company if the Buyer becomes subject to any of the events listed in clause 21.1(a) to clause 21.1(d), or the Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
21.3 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
21.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest.
21.5 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
21.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
Governing Law and Jurisdiction
22. The Contract and all contracts between the Company and the Buyer shall in respects be governed by English law and all disputes which may arise out of or in connection with these Conditions or the Contract or any contract between the Company and the Buyer or any Goods supplied or to be supplied under the Contract or any contract shall be subject to the exclusive jurisdiction of the English Courts save that the Company shall be at liberty to bring any legal proceedings against the Buyer in the Courts of any other country which it considers appropriate.
23. In the event that the Company shall bring any legal proceedings against the Buyer in connection with these Conditions or the Contract or any contract between the Company and the Buyer or any Goods supplied or to be supplied under the Contract or any contract between the Company and the Buyer the Buyer shall indemnify the Company against all costs and expenses incurred by the Company in connection therewith on a full indemnity basis.
24. For the avoidance of doubt nothing in these terms and conditions are intended to confer on any third party any benefit or the right to enforce any terms within the conditions.