1.1 'Company' means Shaws Since 1897 Ltd..
1.2 'Customer' means the person, firm or company placing an order with the Company.
1.3 'Goods' means all those goods and materials which are the subject of the Customer's order and which are to be supplied to the Customer by the Company under these Conditions.
1.4 'Conditions' means the terms and conditions set out below.
1.5 'Contract' means the contract for the supply of Goods formed by the Company's acceptance (which, however made or communicated, shall be deemed to be subject to these Conditions) of the Customer's order.
2 Formation of Contract
2.1 All Goods sold by the Company are sold subject to these Conditions and unless otherwise agreed in writing by a director of the Company these Conditions shall be the sole terms and conditions of any sale by the Company to the Customer. Terms and conditions on the Customer's order form or other similar document shall not be binding on the Company and the placing of an order for or the acceptance of the Goods by the Customer shall indicate unqualified acceptance of these Conditions.
2.2 No representative, agent or sales person has the Company's authority to vary, amend or waive any of these Conditions on behalf of the Company and no amendment or addition to any of these Conditions shall be deemed to have been accepted unless accepted in writing by a director of the Company.
2.3 The Company reserves the right to correct any clerical or typographical errors made by its employees at any time upon notice to the Customer.
3 Quotations and Prices
3.1 The prices, quantities and delivery times stated in any quotation are not binding on the Company. They are commercial estimates only which the Company will make all reasonable efforts to achieve taking into consideration any changes in variable costs and quantities required.
3.2 The price payable for the Goods shall be as stated in the Company's price list (or quotation relating to the Goods) unless otherwise stipulated in writing by the Company but the Company reserves the right to alter its prices without prior notice to the Customer at any time prior to delivery. Any changes after an order is made but before delivery occurs shall only take into account increased costs to the Company in relation to such Goods.
3.3 The price is exclusive of the cost of delivery in accordance with clause 5.3 and exclusive of Value Added Tax, customs duties and all other taxes, duties and expenses in respect of the Goods all of which shall be added to the price for the Customer's account unless otherwise stipulated in writing by the Company.
3.4 Colours or finishes outside the Company's standard range shall (unless otherwise stated) be subject to extra charge.
3.5 Unless otherwise specified, surveys, drawing office services and/or taking off of quantities are not included in the prices for Goods and shall be subject to extra charges if supplied.
3.6 Pallets shall be subject to additional charges. If pallets are returned to the Company's premises from which delivery was made, in the same condition as they were supplied, within three months of delivery, the pallet costs shall be refunded. The Customer shall immediately inform the Company of the dispatch of such pallets.
3.7 The Company cannot guarantee continued stocks of the same type of products as the Goods following delivery and the Customer shall ensure that sufficient quantities of Goods are ordered. Prices shall not be valid for subsequent orders of Goods even if there is no change to the specifications.
4.1 All drawings, photographs, illustrations, dimensions, weights and other technical information and particulars of the Goods and any samples are given by the Company in the belief that they are as accurate as reasonably possible but are not to be treated as binding or as forming part of the Contract.
4.2 The Customer shall pass on to all third parties to whom it may supply the Goods any and all safety, storage and/or usage and/or installation instructions and guidance provided by the Company to the Customer in relation to the Goods.
5 Orders and Delivery
5.1 Notwithstanding that the Company may have given a detailed quotation, no order shall be binding on the Company unless and until it has been accepted in writing by the Company.
5.2 Unless otherwise agreed, the Customer shall take delivery of Goods (or instalments thereof) at the Company's premises within 14 days of receiving notice from the Company that such Goods are ready (and risk shall pass on the 14th day if not before).
5.3 If clause 5.2 does not apply and unless otherwise agreed, delivery of Goods within the UK will be made at the cost and risk of the Customer to the address specified in the Customer's order by any method of transportation regarded as suitable by the Company at its discretion.
The method and terms of delivery of Goods destined for export outside the UK will be as stated in the Contract which shall, in the absence of express agreement otherwise, incorporate the latest Ex Works Incoterms to the extent they do not conflict with the terms of the Contract.
5.4 The Customer shall promptly comply with all reasonable requests of the Company in respect of the Contract including, without limitation, providing access to relevant premises. The Customer acknowledges that delivery timetables are dependant on compliance with this clause 5.4 and the Company shall not be liable for any delay of the Customer.
5.5 Although the Company will use all reasonable efforts to meet delivery dates, it shall not be liable to the Customer for any loss or damage, whether direct, indirect or consequential if delivery of the Goods is delayed or prevented, in whole or in part. The Company reserves the right to deliver in instalments at its discretion.
5.6 If the Customer refuses or fails to take delivery of the Goods on the date of delivery, the Company will be entitled at its discretion to store the Goods at the risk of the Customer and the Customer shall in addition to the price payable under clause 3.2 pay all costs and expenses of such storage and any additional costs of carriage incurred. The Company shall have no liability for loss of or damage to such Goods howsoever caused and whether or not attributable to the negligence of the Company or negligence or wilful default of any servant or agent of the Company.
5.7 The Customer shall accept the supply of such quantity of the Goods (whether more or less) as reasonably approximates to the stipulated amount of the Customer's order on a rateable adjustment of the total price.
5.8 All Goods must be inspected by the Customer immediately on delivery. If any Goods are damaged, defective or do not match or if (subject to clause 5.7) there has been short delivery, the Customer must endorse the delivery note accordingly and submit a detailed written notice of such to the Company within 3 days of delivery of the Goods. The Customer's signature on the delivery note without any such endorsement shall release the Company from any liability in respect of damage, defects, matching faults or short delivery.
5.9 The Customer shall have no right to cancel any order. In the event that an order is cancelled, the Customer shall immediately pay to the Company the full order value of the Goods unless, in its absolute discretion, otherwise agreed by the Company.
5.10 If the Customer wishes to vary any order it shall notify the Company in writing giving full details of the requested variation. The Company shall be under no obligation to accept such request, but if it accepts a variation the Company shall notify the Customer of any applicable changes to the price and delivery timetable as a result of the variation. Such changes shall be binding on the Customer unless the Customer notifies the Company within 2 days that it does not accept in which case there shall be no variation to the order.
5.11 The Company does not accept the return of Goods which are surplus to the Customer's requirements.
Unless otherwise agreed in writing, the risk of loss or damage to the Goods shall pass to the Customer upon the Goods leaving the Company's premises pursuant to clauses 5.2 and/or 5.3.
7.1 Unless otherwise agreed in writing, payment will be due:
7.1.1 in respect of any terracotta Goods, 30 days from the date of invoice; and
7.1.2 in respect of all other Goods, no later than the last day of the month following the month of the invoice;
in each case, irrespective of whether or not the Goods have been delivered. The Company reserves the right to withdraw these credit terms immediately upon written notice.
7.2 Time for payment is of the essence. If payment is not made when due then the Company may, without prejudice to its other rights:
7.2.1 charge interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 on the balance outstanding until payment (including such interest) is made in full; and/or
7.2.2 disapply any previously agreed early settlement discount following which the full amount shall become payable; and/or
7.2.3 suspend all work in respect of any other order under these conditions or any other contract until the Company has been paid all sums then outstanding together with the price of Goods ordered but not yet delivered under this or any other contract.
7.3 If the Company gives written notice to the Customer that a delivery has been suspended under clause 7.2.3 and the Customer does not, within fourteen (14) days, pay all sums then outstanding, the Company shall be entitled to treat such non-payment as repudiation of any or all contracts between the parties for the supply of goods and, upon acceptance of such repudiation, any and all outstanding orders shall be treated as cancelled by the Customer and the Company may claim payment for all sums due for delivered Goods and cancelled orders under this or any other contract.
7.4 The Customer shall not purport to set off or withhold any payments claimed or due to the Company under this or any other contract.
7.5 Without prejudice to any other rights the Company may have pursuant to this clause 7 the Customer agrees to indemnify the Company for all reasonable costs (including legal fees) the Company incurs in recovery or attempted recovery of outstanding monies due to the Company.
8 Title and Lien
8.1 The Company shall retain title to and ownership of the Goods until it has received payment in full of all sums due for all Goods supplied to the Customer plus any interest payable under clause 7.2.1. If payments received from the Customer are not stated to refer to a particular invoice, the Company may in its discretion apportion such payments to any outstanding invoice.
8.2 If any of the Goods owned by the Company are attached to, mixed with or incorporated into any other goods not owned by the Company so that the Goods in question are not separate from the resulting composite or mixed goods, then immediately upon manufacture all such composite or mixed goods shall belong to the Company absolutely and not by way of charge until the Goods have been paid for in full or until the Company recovers possession of and resells sufficient of the composite or mixed goods to discharge the purchase price in full and the Company's costs recovered, any excess to be accounted for to the Customer.
8.3 Until payment of the purchase price the Customer shall be the bailee of the Goods for the Company and the Goods shall be stored separately from any Goods which belong to the Customer or any third party, and shall be clearly marked and identifiable as being the Company's property.
8.4 The Company hereby licences the Customer to sell, as the Company's agent and bailee, Goods which belong to the Company. All monies received from any such sale shall be held on trust to settle any sums due in respect thereof to the Company and pay any balance to the Customer.
8.5 If the Customer fails to make any payment to the Company when due, compounds with its creditors, executes an assignment for the benefit of its creditors, has a bankruptcy order against it or, being a company, enters into voluntary or compulsory liquidation or has an administrator or administrative receiver or receiver appointed over all or part of its assets or takes or suffers any similar action in consequence of debt or becomes insolvent or if the Company has reasonable cause to believe that any of these events is likely to occur, the Company shall have the right, without prejudice to any other remedies:
8.5.1 to enter without prior notice any premises where Goods owned by it may be, and to repossess and dispose of any Goods owned by it so as to discharge any sums owed to it by the Customer under this or any other contract and a licence is hereby granted irrevocably to the Company and its representatives to enter the Customer's premises where the Goods are being kept to remove the Goods;
8.5.2 to require the Customer not to resell or part with possession of any Goods owned by the Company until the Customer has paid in full all sums owed by it to the Company under this or any other contract; and/or
8.5.3 to withhold delivery of any undelivered Goods and stop any Goods in transit.
8.6 Unless the Company expressly elects otherwise, any contract between it and the Customer for the supply of Goods shall remain in existence notwithstanding any exercise by the Company of its rights under this clause 8.
8.7 The Goods shall, once the risk has passed to the Customer in accordance with clause 6 or otherwise, be and remain at the Customer's risk at all times unless and until the Company has retaken possession of them, and the Customer shall insure accordingly. Until such time as payment for the Goods has been made in full, any money received by the Customer as a result of any insurance claim of whatever nature with regard to the Goods shall be held on trust for the Company as if it were proceeds of the sale of the Goods and shall be immediately remitted to the Company.
9.1 The Company warrants that at the time of delivery the Goods will be free from defects in materials and workmanship and the Company will at its option refund the purchase price of or repair or replace free of charge any Goods which its examination confirms are defective provided:
9.1.1 the Customer makes a full inspection of the Goods immediately upon delivery;
9.1.2 the Customer notifies the Company of any damage, defects or short delivery in accordance with clause 5.8;
9.1.3 the Customer has used the Goods in accordance with any instructions or recommendations of the Company;
9.1.4 the Goods have not been adjusted, altered, adapted or repaired by any party other than the Company;
9.1.5 the Goods have not been affected by external influences including, without limitation, any installation materials or methods;
9.1.6 the Goods are either made available to the Company for inspection or returned to the Company at the Customer's own expense, as the Company may request; and
9.1.7 the defect does not arise from a design supplied by the Customer.
9.2 The Company shall be under no liability under the above warranty if the total price for the Goods has not been paid on or before the due date.
9.3 In no circumstances shall the Company's liability to the Customer exceed the price paid for the Goods with respect to which a claim is made.
9.4 Except as provided for in these Conditions, there are no warranties, express or implied, of merchantability or of fitness for a particular purpose, or of any other kind except as to title. In particular, all conditions and warranties which would otherwise be implied by statute or under the common law are hereby excluded to the fullest extent permitted by law.
10.1 The Company shall under no circumstances be liable for any indirect, special or consequential loss (including loss of anticipated profit or third party claims) howsoever arising either from breach or non-performance of any of its obligations under the Contract or from the supply of or intended use of the Goods or from any delay in delivery, even if the Company has been advised of the possibility of such potential loss, except that in the case of contracts which are not international supply contracts as defined in section 26 Unfair Contract Terms Act 1977 the Company shall be liable for loss arising from death or personal injury resulting from the proven negligence of the Company except that nothing in these Conditions shall have the effect of excluding or limiting liability under the Consumer Protection Act 1987 to a person who has suffered damage caused by a defective product, or to a dependent or relative of such person.
10.2 In the event that the Goods are based on a design supplied by the Customer, the Customer shall fully indemnify the Company in respect of all actions, suits, claims, demands, costs, charges or expenses arising from any claim by a third party in respect of such Goods (whether such claim relates to intellectual property rights, infringement, personal injury or otherwise) to the extent that the actions, claims, demands, costs, charges or expenses relate to the design of the Goods.
10.3 All recommendations and advice given by or on behalf of the Company to the Customer as to methods of storing, using or applying the Goods, the purposes for which the Goods may be applied and the suitability of using the Goods in any manufacturing process or in connection with any other materials are given without liability on the part of the Company.
10.4 The Company makes no representation or warranty that use of the Goods does not infringe the rights of any third party and the Company accepts no liability in this respect.
Should the Customer make default in any payment or otherwise be in breach of its obligations to the Company under the Contract or under any other contract with the Company or clause 8.5 becomes applicable, the Company may, by notice in writing to the Customer, without prejudice to any other rights, forthwith suspend or cancel any uncompleted part of the Contract or stop any Goods in transit or require payment in advance or satisfactory security for further deliveries under the Contract.
12 Force Majeure
The Company shall not be liable to the Customer for any loss or damage caused to or suffered by the Customer as a direct or indirect result of the supply of the Goods by the Company being prevented, restricted, hindered or delayed by reason of any circumstances outside the control of the Company including, without limitation, fire, flood, labour dispute, breakdown of machinery, shortage of labour or raw materials and/or damage to or destruction of the Goods and the Company shall be at liberty to suspend or cancel any affected orders for Goods without liability.
The failure of the Company to insist upon the strict performance of any of the terms and conditions of the Contract shall not be construed as a waiver of any such term or condition and shall in no way affect the Company's right to enforce such provision later.
If any of the terms and conditions of the Contract (or part thereof) shall be found to be invalid, ineffective or unenforceable, the invalidity, ineffectiveness or unenforceability of such term or condition (or part thereof) shall not affect any other term or condition (or the other part of the term or condition of which such invalid, ineffective or unenforceable part forms part) and all terms and conditions (or parts thereof) not affected by such invalidity, ineffectiveness or unenforceability shall remain in full force and effect.
15 Governing Law
The construction, validity and performance of the Contract shall be governed by English law and by entering into the Contract the parties submit to the exclusive jurisdiction of the English courts save that the Company may at its option take proceedings against the Customer in any other court of competent jurisdiction.