Terms & Conditions of Sale
These Terms and Conditions apply to all sales including those made via our telephone sales system (Premium Call Charges do not apply) and to all orders taken via electronic means. Please read these Terms and Conditions carefully before completing your order. This document and Terms and Conditions are concluded in the English Language. We will retain a copy of this document and you will be provided with a copy.
1. CONTRACT
1.1 S&A Ltd which trades under the name S&A Merchants Ltd (‘the Seller’) and is incorporated in England and Wales, with registered company number 3506452 and with its registered office at Harmire Enterprise Park, Barnard Castle, County Durham, DL12 8EH and VAT registration number 847698949, supplies its goods and services (‘the Goods’) to its customer (‘the Customer’).
1.2 It is the intention of the Seller that all the terms of the contract applying to all transactions for the sale and supply made by the Seller shall be contained in these Terms and Conditions.
1.3 Any printed or other Terms and Conditions emanating from the Customer are excluded.
1.4 The Seller reserves the right to alter these Terms and Conditions without notice to the Customer. Changes will apply to any subsequent orders received.
2. QUOTATIONS
2.1 Quotations are open for acceptance for a period of 30 days from and including the date of quotation and are thereafter void unless otherwise stated by the Seller.
2.2 All quotations are made and all orders are accepted subject to the Terms and Conditions herein contained and no additions thereto or variations thereof shall be made or binding unless agreed in writing by the Seller.
2.3 The Seller reserves the right to withdraw a Quotation at any time before the receipt of an order from the Customer subject to notifying the Customer.
3. DELIVERY
3.1 Delivery dates and times given by the Seller are estimates only. Unless expressly agreed by the Seller in writing time is not and shall not be deemed to be of the essence of the contract, subject to delivery taking place within a maximum of 30 days (unless otherwise specifically agreed between the Seller and the Customer).
3.2 If by reason of a force majeure or any labour dispute the completion of the contract or the delivery of Goods is in the Sellers opinion rendered impracticable the Seller shall be at liberty to terminate the contact by notifying the Customer in writing to that effect. On such termination the Customer shall pay to the Seller such sum as will, together with any other sums paid previously, bear the same proportion to the contract price (including any variation) thereof as the Goods supplied.
3.3 For the avoidance of doubt in no circumstances shall the Seller be liable to compensate the Customer in damages or otherwise for non-delivery or late delivery of the Goods or performances of the service or any of them for whatever reason or for any consequential loss arising therefrom.
3.4 The Customer shall make all arrangements necessary to take delivery of Goods whenever they are tendered for delivery.
3.5 The Goods shall be signed for on receipt. Any alleged damage, shortage or discrepancies at the time of delivery must be notified to the Seller within 3 working days of receipt of the Goods by notice in writing addressed to :-
S & A Merchants, Harmire Enterprise Park, Barnard Castle, County Durham, DL12 8EH, England. The Seller shall be discharged from all liability in respect of any claim received outside the 3-day period referred to above.
3.6 Items are subject to their availability. Whilst the Seller will endeavour to hold sufficient stock to meet all orders, if there is insufficient stock to meet the Customers order, the Seller may at their discretion contact the Customer to offer a substituted product of equivalent quality and price, which the Customer may cancel in accordance with these Terms and Conditions and return the Goods at the Sellers expense. Alternatively the Seller will refund the price paid for such Goods as soon as possible.
3.7 The Customer is to provide the necessary labour for unloading the Goods and unloading is to be completed with reasonable speed. If the Sellers delivery vehicle is kept waiting for an unreasonable time or is obliged to return without completing delivery or if the Seller provides additional staff to unload the Goods or if for any reason the Customer fails to accept delivery of the Goods, an additional charge will be made.
3.8 The Seller shall deliver the Goods as near as possible to the delivery address as a safe hard road permits. The Seller reserves the right to refuse the delivery of the Goods to premises considered at the discretion of the driver to be unsuitable.
3.9 The Seller reserves the right to make delivery by instalments and tender a separate invoice in respect of each instalment. The Sellers failure to deliver one or more instalments or any claim by the Customer in respect of any or more instalments shall not entitle the Customer to treat the contract as a whole to be repudiated.
3.10 If Goods are to be deposited other than on the Customers private premises, the Customer shall be responsible for compliance with all regulations and for all steps which need to be taken for the protection at all times of persons or property and will indemnify the Seller in respect of all losses, damages, costs and expenses the Seller may incur as a result of such delivery, whether on the public highway or elsewhere.
4. PRICE
4.1 The price payable for the Goods ordered is the price published in our price list or shown on the Quotation, Web site or provided over the telephone by the Seller. This price is correct as at the time the Seller receives the Customers order and is exclusive of any applicable charges for VAT, carriage and insurance.
4.1.1 Whilst every effort is made to ensure that the correct price is provided by the Seller, errors may occur. If the Seller discovers that such an error has been made the Customer will be contacted to confirm this.
4.1.2 The Customer will then be given the option of cancelling the order or re-confirming it at the correct price. If the Seller is unable to make contact with the Customer the order will be treated as being cancelled.
4.2 The prices quoted are exclusive of VAT.
5. TERMS OF PAYMENT AND DEPOSITS
5.1 The Seller may at its absolute discretion require the Customer to make an advance payment for the supply of Goods, payable to the Seller or provide an irrevocable letter of credit.
5.2 Unless agreed to the contrary all Goods provided are subject to payment in full by the twenty fifth day of the month following the month of delivery.
5.3 Pursuant to the Late Payment of Commercial Debts (Interest) Act 1998, the Seller shall be entitled to charge interest at a rate of 8% above the Bank of England Base Rate on any payment or payments which are overdue and shall be entitled to withhold further deliveries if at any time payment to the Seller is in arrears.
5.4 The Customer shall reimburse the Sellers costs including legal costs on an indemnity basis which the Seller may incur in enforcing this Contract including but not limited to recovery of any sums due. Such sums shall be in addition to statutory compensation.
5.5 Payment shall be made without any deduction by reason of any alleged counterclaim or otherwise.
6. RIGHTS OF CANCELLATION
6.1 The United Kingdom’s Distance Selling Regulations 2000 provide the Customer with a right to cancel an order for products at any time up to the end of the seventh working day following the day after the day on which the Customer received the Goods. The Customer does not need to provide any reason for cancellation.
6.2 On cancellation of the Goods the Customer must return the Goods in their original condition to the Seller at their own cost unless the Goods are returned because they are faulty or incorrect or supplied in accordance with clause 3.6 of these Terms and Conditions, in which case the Seller will meet the cost of the return on the Sellers nominated carrier. If the Goods are not returned by the Customer the Seller reserves the right to deduct the costs of recovering the Goods from any refund due to the Customer.
6.3 If the Goods are damaged in transit, the Seller reserves the right to refuse a refund and it will be the Customers responsibility to seek compensation from the carrier.
6.4 The Customer must take reasonable care of the Goods in their possession pending return to the Seller. The Seller will only accept returned Goods in their original packaging (including all original literary material) and which do not exhibit signs of wear and tear. Any use of the Goods beyond that necessary to inspect the Goods on delivery will invalidate the Customers right to cancel the contract.
6.5 Once the Goods have been received by the Seller and the Seller is satisfied that the Customer has complied with these Terms and Conditions, refunds will be made within 30 days.
7. PASSING OF TITLE
7.1 Property in the Goods is to remain with the Seller until such time as payment in full has been received by the Seller for:-
7.1.1 The Goods, and
7.1.2 All other services owed by the Customer to the Seller under the contracts, and
7.1.3 All other sums owed by the Customer to the Seller in respect of any other Goods rendered.
7.2 Until such time as all payments due to the Seller have been received the Goods shall remain the sole and absolute property of the Seller as legal and equitable owner and the Customer shall hold the Goods as bailee for the Seller.
7.3 Without prejudice to the Seller’s continued fiduciary obligations to the Seller as bailee of the Goods the Customer shall be entitled to sell the Goods and pass the property and the same to third parties in the normal course of its business subject to the proceeds of sale being held on trust for the Seller until such time as any outstanding sums due to the Seller from this contract or others have been settled.
7.4 As bailee of the Goods the Seller by its employees or agents (without prejudice to the Customers continued fiduciary obligations) are entitled to enter upon or either into any land building or vehicles where the Goods and/or any other Goods in which the title is retained by the Seller are situated or are reasonably thought to be situated to retake possession of the same and the Customer shall for such purposes notify the Seller of the whereabouts of all such Goods:-
7.4.1 If the Customer shall be in breach of any part of the contract or
7.4.2 If the Seller shall reasonably consider for any reason that the Goods or any part of them are in jeopardy; or
7.4.3 On the happening of any of the events set out in sub-paragraph 7.6 below.
7.5 Upon the happening of any of the events set out in sub-paragraph 7.6 below the Customers authority to sell the Goods and all other Goods in which the Seller retains title shall end and all such Goods shall be delivered to the Seller and all proceeds of all such Goods received by the Customer prior to the withdrawal of the authority shall be paid to the Seller.
7.6 The events referred to in sub-paragraph 7.4 and 7.5 above are:
7.6.1 The Customer is unable to pay his debts within the meaning of S123 of the Insolvency Act 1986 or any Statutory modification thereof or if at any time there occurs a material adverse change in financial condition of the Customer such that in reasonable opinion of the Seller it appears that the Customer will be unable to meet its obligations to the Seller.
7.6.2 Any notice to the Customer that the Receiver or Manager will be or has been appointed over all or any part of its assets
7.6.3 Any notice to the Customer that a petition to wind up the Customer will be or has been presented or issue of any notice convening a meeting of the Customer at which a Resolution is to be proposed to wind up the Customer.
7.6.4 A decision by the Customer that the Customer intends to make an arrangement with its creditors.
7.6.5 The Customer being an individual is unable to pay its debts within the meaning of S268 of the Insolvency Act 1986 or statutory modification thereof.
7.6.6 Any event or default which would cause the Seller reasonably to consider that its title to the Goods and/or all of the Goods or services in which it retains title or the proceeds of the sale thereof may be adversely affected.
7.7 The Customer or any Director thereof shall notify the Seller forthwith of the happening of any events referred to in sub-paragraph 7.6 above and shall give the Seller 14 days notice of any intention to appoint an Administrator or give 14 days notice to the Seller as soon as it is apparent to any Officer of the Customer that a petition for an Administration Order is to be presented to the Court.
7.8 The Customer shall not pledge the Goods or allow any lien to arise thereon or process or deal with the Goods other than in the ordinary course of the Customers business and shall not hold itself out as the Sellers Agent in respect of them.
7.9 The Customer shall store the Goods in such manner that they are clearly identifiable at all times as the property of the Seller.
8. RISK
8.1 The Risk in the Goods sold to the Customer shall pass to the Customer so that the Customer is responsible for loss damage or deterioration of the Goods or a part thereof at the time of the tender if the Customer wrongfully fails to take delivery of the Goods when tendered or from time to time when the same leaves the premises of the Seller. Where the Goods are delivered by carrier any claims for loss or damage in transit must be made by the Customer against the carrier in accordance with any terms and conditions of business of the carrier.
8.2 The Customer shall be solely responsible for insuring the Goods following delivery against such risks as it thinks appropriate.
9. WARRANTY
9.1 Except where Goods are sold to a person dealing as a consumer within the meaning of the Unfair Contract Terms Act 1977 all warranties conditions or other terms implied by statute or common law are excluded to the full extent permissible by law.
9.2 In respect of Goods manufactured by other persons firm or corporation the Customer shall be entitled only to such benefits as the Seller itself may receive under any guarantee or warrant given in respect thereof by the manufacturers except as expressly stated in these conditions all other warranties guarantees conditions and representations express or implied statutory or otherwise hereby excluded and the Seller shall not be liable in contract or otherwise for any loss or damage expense or injury of any kind arising out of or in connection with the installation use or failure of the components supplied by the Seller or any defect therein or from any other cause and whether or not due to acts or omissions of the Seller its servants agents or contractors.
10. SELLERS OBLIGATIONS
10.1 Save as provided herein and save where the law of the United Kingdom prohibits such exclusion no express or implied obligations, duties, liabilities, terms, warranties or conditions, statutory, customary, legal or equitable and whether verbal or written, inherent or collateral shall be binding upon the Seller or have any part in the relationship in tort or in contract between the Customer and the Seller.
10.2 Subject to the Customers compliance 6.2 the Seller may be liable for defects in Goods manufactured if they are returned to the Seller within one month of the date of dispatch and have not been subject to misuse. Such liability (if any) shall comprise the repair or replacement of such Goods, at the Sellers option, and the cost of carriage from the Customer to the Seller and return but no further liability shall exist. Subject to the above, and except in respect of death or personal injury caused by the Sellers negligence, the Seller shall not in any circumstances be liable to the Customer for damages, compensation, costs, expenses, losses or other liabilities whether direct or consequential (whether for loss of profit or otherwise) and any other remedy which would otherwise be available in law is hereby excluded except to the extent that such exclusion is prohibited by any rule of law. In respect of the Goods supplied but not manufactured by the Seller, the Seller gives the Customer only such guarantees and warranties (if any) as the Seller enjoys and can enforce in respect of the Goods.
10.3 Without prejudice to the generality of the foregoing the Seller relies upon the Customers judgement to select Goods which will be fit for the Customers purposes. Further, the Customer shall indemnify the Seller against all costs, claims, charges, damages, losses, expenses, actions, proceedings and liabilities brought or sought by third parties against the Seller in respect of Goods including, without prejudice to the foregoing, those relating to any infringement of any intellectual property rights arising from the manufacture or delivery of any Goods in accordance with the Customers request, or instructions and those relating to any damage or harm to persons or real or personal property whatsoever.
10.4 The Customer shall at all times use all proper skill and care in fitting or construction and shall keep the Seller indemnified against any failure to do so.
10.5 The Customer has at all times a duty in the event of any alleged breach of the Seller to mitigate its loss whenever and however reasonably possible.
11. SPECIFICATIONS
11.1 Except where specifically agreed in writing the selection and choice of the Sellers Goods and assessment of the Goods suitability and fitness for the purpose is the Customers sole responsibility. It is up to the Customer to satisfy itself that the Goods are suitable for any product or application for which they are to be used or incorporated into such product or application.
11.2 Any specifications, formulations, data, literature and statements as to the content, suitability, performance or otherwise, issued and description and samples given, by the Seller in connection with the contract are offered in good faith but are intended to be approximate only and shall not be deemed to constitute representations for the purpose of the contract.
11.3 Goods are supplied on the condition that the Customer undertakes at all times to take and comply with (and to draw to third parties attention and require them to take and comply with) all instructions and recommendations issued with or contained on or relating to the Goods or any relevant data sheets, and all reasonable and prudent precautions as to the installations, use, maintenance, cleaning and otherwise.
11.4 Pursuant to the Sellers policy of continuous improvement the Seller reserves the right without notice and without affecting the validity of the contract to make such changes in materials, dimensions and design as the Seller feels reasonable or desirable in all circumstances having regard to the Customers wishes.
11.5 The copyright in the Sellers designs, data sheets, packaging and literature shall remain the property of the Seller and no licence thereunder shall be implied.
11.6 Any Goods sold or described by the Seller as “untested” or “random length” or “miscellaneous” or any similar description as sold in the actual state, as seen, without warranty with all faults whether or not the Goods have been inspected by the Customer prior to delivery. If the Customer re-sells such Goods the Customer must ensure that a provision in a similar form to this is incorporated in the Resale Agreement unless prior to him selling the Goods the Customer has caused the Goods or such part of the Goods subject to the resale to comply with a recognised specification standard.
12. PROPER LAW
12.1 The Contract shall be governed and interpreted in accordance with English Law and the parties hereto submit to the non-exclusive jurisdiction of the High Court of Justice in London England.
13. INDEMNITY
13.1 The Customer shall at all times keep the Seller, its employees, servants and agents indemnified against all actions, proceedings, costs, charges, claims, expenses and demands whatsoever which may be made or brought against the Seller, its Directors, employees or agents by any third party in respect of any injury, loss, damage or expense howsoever or whensoever arising, which is a result of or arising out of the supply of Goods and/ or services under this contract unless such injury, loss, damage or expense is caused wholly or in part by negligence of the Seller. The Seller shall nevertheless be entitled to be indemnified by the Customer in the event of the Seller being proven to have been negligent, save only that the Seller shall make a contribution and hence waive its right of indemnity in respect of such actions, proceedings, costs charges, claims, expenses and demands in proportion as the same shall be found to have been due to their negligence, but such contributions and/or waiver of the right of indemnity shall in no circumstances (save in the respect of a claim for death or personal injury) exceed the contract price.
14. NOTICES
14.1 Any notice given under or pursuant to the contract shall be in writing and may be given by hand or by post and shall be deemed duly served if left at or sent by first class post to the address of the relevant party shown on the face hereof. Any such notice shall be deemed duly served when the same is handed to or left at the address of the party to be served and if served by post of the day (not being a Sunday or public holiday) next following the day of posting.
15. HEADINGS
15.1 The headings in these terms are for convenience only and shall not be of any effect in the interpretation of these terms.
16. COMPLAINTS
All complaints should be addressed to S&A Merchants Ltd, Harmire Enterprise Park, Barnard Castle, County Durham, DL12 8EH.
16.1 If Goods the Seller delivers to the Customer are not as ordered or are damaged, defective or incorrect quantity, the Customer should contact the Seller within 3 days of delivery. The Seller will replace the incorrect, damaged or defective Goods or make good the shortfall in quantity, or at the Customers option, credit the price and delivery charges of those Goods.
16.2 If the Customer does not receive Goods ordered, the Customer should notify the Seller within 28 days of the date of the order. The Seller will deliver the Goods ordered or, at the Sellers option credit the price and delivery charges of the non-delivered Goods to the Customer, or if the Seller has not accepted the order and have been unable to contact the Customer, the Seller will notify the Customer of the reason for non-acceptance.
16.3 Nothing in these Terms and Conditions shall be construed to exclude or limit any rights you may have as a consumer to the extent that such liability and rights may not be excluded or limited under applicable statute or law.
17. THIRD PARTY RIGHTS
The Seller may transfer its rights under the contract, but otherwise nothing in these Terms and Conditions shall give any person who is not a party to the contract any benefit or right to enforce any of the terms of the contract.
18. EXCLUSIONS AND WARRANTIES
18.1 The information provided via the Sellers web-site, brochures or any other such advertising or promotional media (‘Promotional Media’), to the fullest extent permitted by law
18.1.1 Excludes all representation and warranties relating to the Promotional Media and its contents, including inaccuracies or omissions and;
18.1.2 Excludes all liability for loss or damage arising out of or in connection with the Customers use of this Promotional Media. This includes without limitation, direct loss, loss of business profits (whether or not the loss of such profits was foreseeable and arose in the normal course of things or the Customer has advised the Seller of the possibility of such potential loss) or any indirect loss consequential and incidental damages.
The Seller does not however exclude liability for death or personal injury caused by its negligence.
The above exclusions and limitations apply to the extent permitted by law. None of the Customers Statutory Rights as a consumer that cannot be excluded or limited are affected.
