Painters Choice © 2012 T: Carryduff Centre, Belfast +44(0)28 9081 3111, or T: Dromore Street, Ballynahinch +44(0) 28 9756 4576
Terms & Conditions of Sale
1.†† ††††† DEFINITIONS
1.1†† In this document the following words and expressions shall have the following meanings:-
ďPurchaserĒ means the company, firm or person who purchases the Goods from the Seller;
ďPurchaserís Purchase OrderĒ means any order for Goods by the Purchaser;
ďContractĒ means any contract between the Seller and the Purchaser for the sale and purchase of Goods incorporating these Terms and Conditions;
ďGoodsĒ means any goods to be supplied to the Purchaser by the Seller (including any part or parts of them);
ďPriceĒ means the price of the Goods to be paid by the Purchaser as determined in accordance with Clause 3;
ďSellerĒ means Painters Choice Decorative Coatings, T/A Painters Choice at Unit 18 Carryduff Centre, Belfast, Co. Antrim BT8 8RB;
ďTerms and ConditionsĒ means the terms and conditions contained in this document.
2.†† ††††† ORDERING GOODS
2.1†† These Terms and Conditions shall apply to all contracts for the purchase of Goods by the Purchaser from the Seller to the exclusion of all other terms and conditions, including any terms or conditions which the Purchaser may purport to apply or which are endorsed upon any correspondence or documents issued by the Purchaser irrespective of their date of communication to the Seller.
2.2†† The Purchaser confirms that in relation to any Contract entered into upon these Terms and Conditions that he is not a ďconsumerĒ for the purposes of section 25(1) of the Unfair Contract Terms Act 1977.† If the Purchaser believes he or she may be a consumer, they should contact the Seller at the address set out above, and different terms and conditions will be supplied by the Seller.
2.3†† The Purchaser must include its invoice and account numbers on all correspondence.
3.†† ††††† Quotations, Orders
3.1†† Quotations are subject to change in price, time of delivery and availability to deliver. A quotation even if deemed binding is void if not accepted by Purchaser within 7 days or within the period stipulated by the Seller.
3.2†† Orders shall not bind the Seller unless and until accepted by Sellerís written confirmation or by delivery to the Purchaser of the product(s) ordered.
3.3†† No verbal representation or verbal statement by an employee or agent of the Seller shall form part of the Contract nor shall any such verbal representation or statement be treated as constituting a representation on the part of the Seller or a term of the Contract unless such representation or statement shall be confirmed in writing.
4.†† ††††† PRICE AND PAYMENT
4.1†† The Price shall be the price set out in the Seller's price list as at the date of despatch or otherwise agreed between the parties. The Price shall be inclusive of delivery charges provided that the Purchaser's Purchase Order meets the requirements for minimum carriage paid orders set out in the Sellerís standard price list.
4.2†† The Price is exclusive of value added tax (VAT) which, where applicable, shall be payable by the Purchaser at the appropriate rate prevailing at the time payment is due.
4.3†† The Seller shall be entitled to invoice the Purchaser in respect of the Goods (or any instalment of the Goods) at the time of delivery of the Goods or the relevant instalment, or at any time thereafter.
4.4†† Payment of the Price shall be made by the Purchaser in cleared funds to the Seller at the time specified in the invoice, or where no date is specified within thirty days from the end of the month in which the Goods are invoiced. Time for payment of the Price shall be of the essence of the Contract.
4.5†† Payment of the Price shall not be accepted by cheque unless agreed in writing by the Seller. Where such an agreement exists any payment made by cheque which for any reason is not paid by the Bank upon which drawn then the Purchaser shall indemnify the Seller in respect of all Bank Charges incurred by the Seller directly or indirectly consequent upon such non-payment including the cost of representation where applicable.
4.6†† The Seller shall have the right to charge interest which shall accrue on a day to day basis on all monies which at any time may be overdue for payment pursuant to the terms of the Contract at the annual rate of four percent above the base rate of the Bank of England from time to time.†
4.7†† Payment shall be due in accordance with this Clause 4 in respect of each consignment of Goods supplied notwithstanding that title in such Goods has not passed to the Purchaser and the Seller shall be entitled to sue for the Price once the same is due notwithstanding that the fact that the property in the said consignment has not passed to the Purchaser.
4.8†† All payments to be made by the Purchaser shall be made: without set-off, deduction or counterclaim; and free and clear of and without deduction for or on account of any taxes except to the extent that the Purchaser is compelled by law to make payment subject to any such taxes.
4.9†† Where the Seller recovers possession of Goods title in which has not yet passed to the Purchaser, such recovery of possession shall be without prejudice to the Seller's right to recover damages for breach of the Contract.
5.†† ††††† DELIVERY
5.1†† Unless otherwise agreed and subject to Clause 5.3 and 5.4, delivery of Goods shall take place at the location agreed by the parties. In the absence of any such agreement the Goods shall be delivered ex works at the Seller's premises notified to the Purchaser. The Purchaser shall be deemed to have accepted the Goods upon their delivery.
5.2†† Any date or time given by the Seller for delivery shall be an estimate only. Time for delivery shall not be of the essence of the Contract.
5.3†† The Seller shall only deliver Goods to locations within Great Britain and Northern Ireland.
5.4†† If the Seller is unable to deliver the Goods for reasons outwith its reasonable control, the Seller shall be entitled to arrange for the Goods to be placed into storage at the Purchaserís expense until such time as the Goods may be delivered.
5.5†† Any shortage in any delivery of Goods must be notified to the Seller within three days of delivery. The Purchaser shall not be entitled to make any claim in respect of any shortage after such three day period.
5.6†† The Purchaser will sign all appropriate paperwork.
5.7†† The Sellerís obligations to sell and deliver Goods to the Purchaser shall be conditional upon the Seller having the Goods in stock. If the Seller does not have any or all of the Goods in stock it shall notify the Purchaser as soon as reasonably practicable and the Seller shall have no obligation to the Purchaser to sell or deliver such Goods to the Purchaser. The Purchaser shall have no obligation to make payment in respect of such unavailable Goods. The parties may agree that such unavailable Goods shall be delivered to the Purchaser once the Seller has the relevant Goods in stock. The Seller retains the right to modify or cancel any line of product and or packaging without notice and will not accept any future orders in respect of such products or packaging.
6.†† ††††† PROPERTY, TITLE AND RISK
6.1†† Property and title in each consignment of the Goods shall remain in the Seller until such time as the Seller has received in full all sums due to it in respect of the Goods and any other goods or services previously or subsequently supplied by the Seller to the Purchaser.
6.2†† Until ownership of the Goods has passed to the Purchaser, the Purchaser shall:
(a)†† hold the Goods in the capacity of a fiduciary agent for and on behalf of the Seller;
(b)†† store and label the Goods (at no cost to the Seller) separately from all other goods of the Purchaser or any third party in such a way that they remain readily identifiable as the Seller's property;
(c)†† not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d)†† maintain the Goods in satisfactory condition and keep them insured on the Seller's behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request, the Purchaser shall produce the policy of insurance to the Seller.
6.3†† The Purchaser shall have the right to sell any consignment of Goods or part thereof before ownership of those Goods have passed to the Purchaser solely on the following conditions:
(a)†† any sale shall be effected in the ordinary course of the Purchaserís business at full market value;
(b)†† any such sale shall be a sale of the Seller's property on the Purchaser's own behalf and the Purchaser shall deal as a principal when making such a sale;
(c)†† the Purchaser shall hold the Sellerís part of the proceeds of such sale in trust for the Seller and shall pay the Sellerís part of such proceeds into a separate bank account clearly denoted as an account containing monies held on trust by the Purchaser for the Seller.
6.4†† The Purchaserís right to sell the Goods under Clause 6.3:
(a)†† may be revoked at any time by the Seller giving notice to that effect if the Purchaser is in default for longer than seven days in the payment of any sum whatsoever due to the Seller (whether in respect of the Goods or of any other goods or services supplied at any time by the Seller to the Purchaser) or if the Seller has bona fide doubts as to the solvency of the Purchaser; or
(b)†† shall automatically cease if a receiver, manager,† administrator or administrative receiver is appointed over the assets, undertaking or property of the Purchaser or a winding-up or administration order against the Purchaser is made or petitioned or any petition or order in bankruptcy against the Purchaser is presented or made or the Purchaser is apparently insolvent or goes into voluntary or involuntary liquidation (otherwise than for the purpose of reconstruction or amalgamation while solvent) or calls a meeting of or makes arrangements or compositions with creditors or the Purchaser ceases to trade or is unable to pay its debts as they fall due; or
(c)†† shall automatically cease if the Purchaser encumbers or in any way charges the Goods; or
(d)†† shall automatically cease if the Purchaser suffers or allows any diligence to be executed on its property;
Upon determination of the Purchaserís rights of sale under this Clause 6.4, the Purchaser (i) shall place the Goods at the disposal of the Seller who shall be entitled to enter into any premises of the Purchaser for the purpose of removing the Goods and to remove the Goods from the said premises; and (ii) pay the Seller the proceeds held by the Purchaser as trustee for the Seller in accordance with this Clause 6.
6.5†† Risk in each consignment of the Goods shall pass to the Purchaser upon delivery by the Seller to the Purchaser and the Purchaser shall arrange for the Sellerís interest in the same to be noted on all relevant insurance policies.
6.6†† The Seller shall be entitled, on termination of the Contract or at any time while any sums due to the Seller are outstanding, to retake possession of the Goods from the Purchaser and the Purchaser undertakes to deliver the same to the Seller or its duly authorised agent upon request and the Seller or its duly authorised agents shall have the right during normal business hours to enter upon the land or buildings of the Purchaser to take possession of the Goods.
6.7†† If the Purchaser ceases trading for any reason (including voluntary or involuntary liquidation) the Seller may enter onto the Purchaserís premises to recover any and all products which have been supplied by the Seller up to the value of outstanding sums owed to the Seller and title in such products shall transfer to the Seller on such recovery.
6.8†† Where the Seller is unable to determine whether any Goods are the goods in respect of which the Purchaserís right to possession has terminated, the Purchaser shall be deemed to have sold all goods of the kind sold by the Seller to the Purchaser in the order in which they were invoiced to the Purchaser.
6.9†† On termination of the Contract for any reason, the Sellerís rights contained in this Clause 6 shall remain in effect.
7.††† ††††††† SELLERíS OBLIGATIONS
7.1†† The Seller warrants that the Seller has good title to the Goods and that it will transfer such title as it may have in the Goods in accordance with Clause 6.
7.2†† The Seller warrants that the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
7.3†† The obligations of the Seller contained in Clause 7.2 shall be conditional upon any defect not having arisen because the Purchaser failed to follow the Sellerís oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or in accordance with good trade practice.
8.††† ††††††† Health, Safety, and Quality
8.1†† The Purchaser shall ensure that all products are safely and lawfully received, stored, maintained, used or applied by the Purchaser and that the Purchaser obtains all relevant information from Seller relating thereto.
8.2†† The Purchase shall ensure that all appropriate safety information is distributed and that attention is drawn to such information from all persons involved in the safe handling or use of the products.
9.††† ††††††† Technical advice and assistance
9.1†† The Seller gives no warranty or undertaking and accepts no liability as regards to any technical advice or assistance related to the use or application of product(s) given to Purchaser unless the Seller has expressly agreed in writing to the contrary. The Purchaser will at all times compensate, hold harmless and indemnify the Seller against any claim resulting from the provision of such technical advice or assistance.
10.† ††††††† LIMITATION OF LIABILITY
10.1 Subject to this Clause 10, the Seller's liability to the Purchaser under any Contract howsoever arising shall be limited to the price of the relevant Goods.
10.2 The Purchaser shall not be entitled to reject any Goods which comply with the Contract on the grounds that other Goods comprised within the Contract do not comply with the Contract.
10.3 The Purchaser shall only be entitled to return Goods where the Seller has approved Goods for return as they do not comply with the terms of the Contract.
10.4 Subject to the Sellerís liability under Clause 7.1 and subject to Clause 10.7, the Seller will not have any liability whether contractual or tort, for any indirect or consequential loss, costs, damages, charges or expenses or loss of profit incurred by the Purchaser or for any loss or damage to or caused by the Goods.
10.5 All sizes and weights shown in any promotional or other material are shown as a guide only and are only approximate measures.
10.6 Subject to the express terms of the Contract, all other conditions warranties or other stipulations concerning the Goods whether express or implied by common law or under statute are excluded to the fullest extent permitted by law, and in particular, but without limiting the foregoing generality, the Seller grants no warranties regarding fitness for purpose, use, quality or nature of the Goods whether express or implied by statute or common law.
10.7 Nothing contained in these Terms and Conditions shall be construed so as to exclude or limit the liability of the Seller for:
(a)†† breach of the warranty contained in Clause 7.1 or for breach of warranty as to quiet possession, as implied by section 12 of the Sale of Goods Act 1979;
(b)†† death or personal injury as a result of the Sellerís negligence, or those of its employees or agents;
(c)†† fraud or fraudulent misrepresentation; or
(d)†† any other matter in respect of which it would be illegal for the seller to exclude or limit its liability.
11.† ††††††† TERMINATION
11.1 ††††† The Seller may terminate any Contract forthwith by notice in writing to the Purchaser:
11.1.1††† on the occurrence of any of the events referred to in Clause 6.4(a) Ė (d); or
11.1.2††† if the Purchaser fails to pay in accordance with Clause 4.4, without prejudice to the Sellerís right to receive interest for non-payment, or is otherwise in breach of the Contract.
12.† ††††††† FORCE MAJEURE
12.1 If performance of the Contract by the Seller shall be delayed by any circumstances or conditions beyond the control of the Seller including, but without prejudice to the generality of the foregoing, any war, industrial dispute, strike, lockout, riot, malicious damage, fire, storm, flood, Act of God, accident, failure of production equipment, any statute, rule, byelaw, order, regulation or requisition made or issued by any government department, local or other duly constituted authority, then the Seller shall have the right to suspend further performance of the Contract until such time as the cause of delay shall no longer be present.
12.2 Where force majeure circumstances exist the Seller may apportion available stocks at its sole discretion.
12.3 If performance of the Contract by the Seller shall be delayed by any such circumstances or conditions beyond the control of the Seller for a period of three months, then the Seller shall have the right to be discharged from further performance of and liability under the Contract.
13.† ††††††† Applicable law, jurisdiction
13.1 All contracts between the Seller and Purchaser including these Conditions shall be governed exclusively by the law of England and Wales.
13.2 The UN Convention on Contracts for the International Sale of Goods (Vienna, 11 April 1980) is expressly excluded.
13.3 The Uniform Law on the International Sale of Goods as well as the Uniform Law on the formation of contracts for the International Sale of Goods is expressly excluded.
13.4 Under the Data Protection Act 1998:
13.4.1††† The Seller endeavours to provide all customers with a copy of the Sellerís Notification Statement (ďStatementĒ) which sets out the purposes which the Seller may use personal information for. A copy of the Statement is available on request in store, by telephoning, or by contacting firstname.lastname@example.org.
13.4.2††† The Purchaser agrees to the disclosure to any credit reference agency or credit or fraud monitoring scheme, of the details of Purchaserís performance of its obligations to Seller under any contract.
13.5 Delay in exercising or non-exercise of any right under the Contract is not a waiver of that right. Partial exercise of any right under the Contract shall not preclude any further or other exercise of that right or any other right under the Contract.
13.6 The courts of Sellerís country of domicile shall have sole jurisdiction unless the Seller decides to seek judgment at the appropriate court in Purchaserís country of domicile, or the country of presence of the products, applied or not applied.
13.7 To the fullest extent possible the Purchaser expressly waives any and all rights it may have to rescind any contract with Seller on any ground whatsoever.