The Seller is Anti Climb Guards Ltd., trading as Vandgard. Any order sent to the Seller by the Buyer shall be accepted entirely at the discretion of the Seller, and, if so accepted, will only be accepted upon these conditions (‘Conditions’) and by means of the Seller\’s standard order acknowledgement form.
Each order which is so accepted shall constitute an individually legally binding contract between the Seller and the Buyer which shall incorporate the Conditions and such contract is hereinafter referred to as an \‘Order\’.
These Conditions shall override any contrary different or additional terms or conditions (if any) contained on or referred to in an order form or other documents or correspondence from the Buyer, and no addition, alteration or substitution of these terms will bind the Seller or form part of any Order unless they are expressly accepted in writing by a person authorised to sign on the Seller\’s behalf.
Specification and Information
The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of an Order (including any applicable specification). No other specification, descriptive material, written or oral representation, correspondence or statement, catalogues, promotional or sales literature shall form part of or be incorporated by reference into the Order other than those (if any) that are expressly listed or set out on the face of the Order.
The Buyer shall be responsible for ensuring that all relevant information as to the proposed use of the goods is made available both to the Seller and the end user.
The Buyer shall be deemed to have accepted all goods upon their collection from the Seller.
Delivery, Collection and Risk
Unless otherwise stated in the Order, the price quoted includes the costs of delivery to the address specified in the Order, provided that the Seller reserves the right to make additional charges to cover any increase in transport costs occurring before the date of delivery or in respect of delivery to an address other than the address specified in the Order.
Pursuant to Condition 10, any time or date for delivery given by the Seller is given in good faith, but is an estimate only.
Risk in the goods shall pass to the Buyer upon collection from the Sellers premises.
Title and Payment
The Seller warrants that the Seller has good title to the goods.
Unless otherwise stated in the Order, payment or the price of the goods comprised in each consignment delivered pursuant to an Order shall become due at the end of the month following the month in which that consignment is collected and time for payment shall be of the essence.
The Seller reserves the right, by giving written notice to the Buyer at any time before collection to increase the price of the goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
If the Buyer fails to make any payment on the due dates then, without limiting any other right or remedy available to the Seller, the Seller may:
cancel the Order 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 order or 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) on the amount unpaid, at the rate of 2% per annum above Barclays Bank base rate from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest) and the Seller reserves the right to claim interest under the Late Payments of Commercial Debts (Interest) Act 1998.
All payments (whether pursuant to an invoice issued by the Seller or otherwise) due or payable to the Seller under an Order shall be payable immediately by the Buyer upon the Order being terminated and/or upon the Seller\’s request despite any other provision.
The Seller hereby reserves the right to recharge the Buyer for the costs incurred in connection with the Seller\’s efforts to collect any outstanding payments including without limitation any costs incurred by the Seller in connection with any third party debt collection agency.
No payments by the Buyer shall be deemed to have been received until the Seller has received cleared funds.
Title to the goods comprised in each consignment shall not pass to the Buyer until the Buyer has paid the full price due to the Seller, but, even though title has not passed, the Seller shall be entitled to sue for their price once its payment has become due.
Until such time as title in the goods passes to the Buyer, the Buyer shall hold the goods as the Seller\’s fiduciary agent and bailee, and shall keep the goods separate from those of the Buyer and third parties and properly stored and identified as the Seller\’s property, but the Buyer may resell or use the goods in the ordinary course of it business.
Until such time as title in the goods passes to the Buyer (and provided the goods are still in existence and have not been resold), the Seller may at any time require the Buyer to deliver up the goods to the Seller and, if the Buyer fails to do so forthwith, enter on any premises on the Buyer or any third party where the goods are stored and repossess the goods.
Until such time as title in the goods passes to the Buyer, the Buyer shall not be entitled to pledge or any way charge by way of security for any indebtedness any of the goods, but if the Buyer does so all monies owning by the Buyer to the Seller shall (without limiting any other right or remedy or the Seller) forthwith become due and payable.
Where the Seller has incurred any liability to the Buyer, whether under the Order or otherwise and whether such liability is liquidated or unliquidated, the Seller may set off the amount of such liability against any sum that would otherwise be due to the Seller under the Order
If the Buyer fails to take delivery of the goods comprised in a consignment or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer\’s reasonable control or by reason of the Seller\’s fault) then, without limiting any other right or remedy available to the Seller, the Seller may:
store the goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price stated in the Order or charge the Buyer for any shortfall below the price stated in the Order.
Damage in Transit
The Seller will replace free of charge any good proved to the Seller\’s satisfaction to have been damaged in transit provided that within 24 hours after delivery both the Seller and the carriers have received from the purchaser notification in writing of the occurrence of the damage and also, if and so far as practicable, of its nature and extent.
The Seller shall not be under any liability for any failure to perform any of its obligations under the Order due to force majeure. Following notification by the Seller to the Buyer of such cause, the Seller shall be allowed a reasonable extension of time for the performance of its obligations.
For the purpose of this condition, \’force majeure\’ means fire, explosion, flood, lightning, Act of God, act of terrorism, war, rebellion, riot, sabotage, or official strike or similar official labour dispute, or events or circumstances outside the reasonable control of the party affected thereby.
Both the Seller and the Buyer shall keep confidential and shall not without the prior consent in writing of the other disclose to any third party any technical or commercial information which it has acquired from the other as a result of discussions, negotiations and other communications between them relating to the goods and the Order.
Subject to condition 12, and notwithstanding anything contained in these Conditions (other than condition 12) or the Order, in no circumstances shall the Seller be liable to Buyer (or any third party) in contract, tort, (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof (i) for any loss of profit, revenue, business, contract, revenues, wasted expenditure or anticipated savings, or (ii) for any special indirect incidental or consequential damage of any nature whatsoever.
Limitation of Liability
Subject to Condition 12 and notwithstanding anything contained in these Conditions (other than Condition 12) or the Order, the Seller\’s liability to the Buyer in respect of the Order, in contract, tort (including negligence or breach of statutory duty) or howsoever arising, shall be limited to the price of the goods specified in the Order.
Unfair Contract Terms Act 1977
If and to the extent that s.6 and/or s.7(3)(A) of the Unfair Contract Terms Act 1977 applies to the Order, no provision of these Conditions shall operate or be construed to operate so as to exclude or restrict the liability of the Seller for breach of the express warranties contained in Condition 5, or for breach of the applicable warranties as to title and quiet possession implied into the terms and conditions of the Order by s.12(3) of the Sale of Goods Act 1979, or s.2(3) of the Supply of Goods and Services Act 1982, whichever Act (as may be amended) applies to the Order.
Nothing in these terms and conditions shall operate or be construed to operate so as to exclude or restrict the liability of the Seller for death or personal injury caused to the Buyer by reason of the negligence of the Seller or of its servants, employees or agents.
Each right or remedy of the Seller under the Order is without prejudice to any other right or remedy of the Seller whether under the, Order or not.
If any provision of the Order is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Order and the remainder of such provision shall continue in full force and effect.
Failure or delay by the Seller in enforcing or partially enforcing any provision of the Order shall not be construed as a waiver of any of its rights under the Order.
Any waiver by the Seller of any breach of, or any default under, any provision of the Order by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Order.
The parties to the Order do not intend that any term of the Order shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
The Order shall be considered a contract made in