In the context of these terms and conditions:
'Seller' means Demounters and shall include the Seller's subsidiaries and duly appointed representatives or agents.
'Buyer' means any customer of the Seller (whether a person, firm or company or any agent, or authorised representative, of such person, firm, or company) purchasing goods from the Seller.
'goods' means all and any goods, materials or products of whatsoever description supplied, sold or distributed by the Seller.
'Conditions' means these terms and conditions of sale and any of them.
'Contract' means any contract entered into between the Seller and the Buyer by which the Seller sells or supplies goods to the Buyer.
The singular includes the plural and vice versa and the masculine gender includes the feminine and neuter gender.
Headings are for convenience only and do not affect the construction and/or the interpretation of the Conditions.
Reference to any rule of law includes common law, statute and statutory regulations, applicable laws of the European Union and the decisions of any court of competent jurisdiction.
Reference to any statute includes any re-enactment or modification of such statute.
These Conditions apply to all Contracts. No modification or variation of them shall be binding unless executed in writing by the Seller and the Buyer. No such written modification shall bind the Seller unless it is signed by a Manager of the Seller.
These Conditions contain the entire terms and conditions of the Contract and shall (subject to any rule of law incapable of being overridden) operate to displace any provisions in any applicable rule of law or terms and conditions imposed or sought to be imposed by the Buyer which might otherwise apply.
The failure by the Seller or the Buyer at any time to require performance of any provision of the Contract shall not affect the right of the Seller or the Buyer to enforce such provision at a later time.
No waiver by the Seller or the Buyer of any Condition nor the breach of any term covenant representation or warranty contained in the Contract (whether express or given by conduct or otherwise) in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any Condition or breach or a waiver of any other Condition or deemed to be or construed as the breach of any other term Condition representation or warranty in the Contract.
Prices and Payment - Delivered Customers
Any quotation given by the Seller to the Buyer in whatever form including the Seller's published price lists current at the date of acceptance by the Seller of an order will be subject to these Conditions.
The Seller's prices are calculated on the basis that these Conditions will apply. All prices quoted shall refer exclusively to the Seller's list prices less any agreed discounts. All orders accepted by the Seller are accepted on the basis that the ruling price will be the Seller's applicable price for the goods at the date of despatch of the goods concerned.
Unless otherwise agreed in writing, payment in full for goods shall be made by the Buyer to the Seller strictly within 30 days of invoice issued.
Payment - Cash & Carry Customers
The Buyer shall pay in full for all goods purchased from the Seller in cash or by debit or credit card before the Buyer or any other person accompanying the Buyer leaves the Seller's premises. The Seller will only accept payment by debit card or other negotiable instrument or by any other means where the Buyer has obtained the prior written consent of the Seller to tender payment by such means. In the event of payment being made by the Buyer by way of a Debit or other negotiable instrument which upon presentation to the Bank of issue is not honoured, then the Seller reserves the right inform the relevant public authorities that an act of fraud may have been committed upon the Seller.
Unless otherwise expressly agreed in writing any delivery times specified by the Seller in its quotation or otherwise are business estimates only (times for delivery not being of the essence) and the Seller will not be liable to the Buyer for any loss or damage (whether direct, indirect or consequential) sustained by the Buyer as a result of the Company's failure to comply with delivery times.
Where 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.
All deliveries refer exclusively to retail delivery addresses in mainland Britain. Orders for other addresses, the Highlands of Scotland or offshore addresses are considered subject to surcharge from the nearest nominated delivery point in mainland Britain.
Passing of Risk
The risk in goods supplied shall pass to the Buyer:-
in the case of goods to be collected by the Buyer or its Agent, when goods are loaded by the Seller on to the vehicle collecting them or removed by the Buyer or its Agent from the Seller's premises; and in other cases, when the goods are unloaded at the address nominated by the Buyer or its Agent for delivery.
Notification of Defects and Return of Goods
The Buyer must notify the Seller of any alleged defect in or damage to the goods within two days from the date of actual collection of the goods by the Buyer or its Agent or delivery by the Seller of the Goods to the Buyer or its Agent or (where the alleged defect or damage was not apparent upon reasonable inspection) within a reasonable time after discovery of the defect or damage. Any such notice must specify the particular alleged defect or damage and must afford the Seller a reasonable opportunity to inspect the goods in question. If the Seller is accordingly notified of any defect or damage to goods and the Seller agrees that such goods are defective or faulty the Seller will (at its option) rectify the defect or fault or replace any such goods or credit the invoice value of the goods and any such rectification or replacement or credit will be in full and final satisfaction of any claim by the Buyer and the Seller shall have no further liability for any loss or damage arising from the defect or fault relating to such goods. Any damage to the goods shall be deemed to have occurred after purchase unless the Buyer proves to the contrary. No claim in respect of the goods may be made by the Buyer if the goods have been mixed by the Buyer with other goods or materials whether or not supplied or sold to the Buyer by the Seller) or have been subject to any manufacturing process by or on behalf of the Buyer and the Seller shall be conclusively deemed to have complied with its obligations concerning the supply of such goods.
Packaging and Handling - Delivered Customers
The packing material in its "as supplied" condition presents no hazard to health.
Tie bands which are used to secure boxed products should not be used for lifting.
Goods supplied vary in size and weight and persons handling them should be fully acquainted with the correct methods of handling them.
Certain items supplied have, due to their nature, sharp points or edges and should therefore be handled carefully.
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 or any other applicable rule of law), all warranties, conditions or other terms implied by any applicable rule of law are excluded to the fullest extent permitted by law, including (without limitation) all warranties, conditions or other terms implied by the Sale of Goods Act 1979 (other than the warranty as to title implied by S12 of that Act).
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.
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, anticipated profit, turnover or otherwise), costs, expenses or other claims for any 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 their use or resale by the Buyer, except as expressly provided in these Conditions.
The Seller shall be under no liability in respect of any defect in the goods arising from any recommendation, drawing, design, specification or instruction supplied by the Buyer.
The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions and use of goods, failure to follow the Seller's or manufacturers instructions (whether oral or in writing), misuse or alteration or repair of the goods without the Seller's approval.
The Seller shall not be liable for any failure to observe or perform or for any losses resulting from the breach of, any of the Conditions by reason of acts of God, war, riots, civil commotions, strikes, lock-outs, trade disputes, fires, breakdowns, interruptions of transport, government action, delay in delivery by the Seller's suppliers or other cause whatsoever beyond the Seller's control. In such circumstances the Seller may terminate the unperformed part of any Contract by notice in writing delivered to the Buyer within seven days of the occurrence of such action or circumstances which have resulted in the Seller failing to observe or perform any Conditions.
The Seller shall be entitled to adjust the purchase price of the goods whether before or after the making of the Contract in the event of any variation in the cost to the Seller of supplying the goods or any part thereof caused by any reason whatsoever beyond the control of the Seller including (without prejudice to the generality of the foregoing) changes in Exchange Rates or the action of any governmental authority.
The Seller reserves the right to alter the specifications of any goods without prior reference to the Buyer, provided that the goods comply in all other known respects to the normal requirements of a Buyer.
Any goods sold as sub-standard or "Seconds" shall be accepted by the Buyer in their actual state and condition and no condition or warranty whether express or implied by any applicable rule of law will apply thereto.
Return of Goods
The Seller may at its absolute discretion, though it shall in no case be obliged, allow the return of goods by the Buyer within one month from the date of the purchase of the goods that a Buyer wishes to return. If the Seller exercises its discretion to allow a Buyer to return goods it shall in all cases upon refunding a Buyer for returned goods.
The supply of goods by the Seller shall not confer any right upon the Buyer to use any of the Seller's trade marks (whether registered or unregistered) and any other intellectual property rights of the Seller without the prior written consent of the Seller and at all times such trade marks shall remain the property of the Seller.
The Buyer shall not, without the Seller's prior written consent, assign or transfer or purport to assign or transfer the Contract or the benefit thereof to any other person whomsoever.
No indulgence or forbearance extended to the Buyer shall limit or prejudice any right or claim available to the Seller against the Buyer.
Termination - Delivered Customers
The Seller shall be entitled without prejudice to any other rights and remedies, either to terminate immediately wholly or in part any Contract with the Buyer or to suspend any further delivery of goods under any Contract in any of the following events:-
If any part of any debt due and payable by the Buyer to the Seller is unpaid;
If the Buyer has failed to take delivery of any goods under any Contract; or
If the Buyer (being a company) shall pass a resolution or suffer an order of a court to be made for its winding up, or if a receiver shall be appointed or if a petition for the appointment of an administrator shall be presented in respect of it or (being an individual or partnership) shall become bankrupt or (being a company, individual or partnership) shall suspend payment or propose to enter into any composition or arrangement with its creditors or become unable to pay its debts (or have no reasonable prospect of so doing).