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Terms and Conditions
Terms and Conditions of Sale
The customer’s attention is drawn in particular to the provisions of clauses 5.4, 7.2 & 8
- INTERPRETATION
1.1 Definitions.
In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Carrier: any party engaged by the Supplier to ensure the safe delivery of goods.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 10.6.
Contract: each contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions as a result of the Customer placing an Order.
Customer: the person, firm or company who purchases the Goods from the Supplier.
Damage: a situation where the Goods have not been delivered to the Customer in a useable or resaleable condition, due to damage in transit by the Carrier.
Force Majeure Event: has the meaning given in clause 9.
Goods: the goods (or any part of them) set out in the Order.
Loss: a situation where the Goods have been lost in transit and cannot be recovered.
Order: the order by the Customer for the Goods, as set out in the purchase order form of the Customer or given verbally based on a quotation supplied by the Supplier.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Supplier: 258 Engineering Supplies Ltd a company registered in England and Wales with company number 13823190 whose registered office is at Suite G04, 1 Quailty Court, Chancery Lane, London, WC2A 1HR.
1.2 Construction.
In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) a reference to a party includes its personal representatives, successors or permitted assigns.
(c) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) a reference to writing or written includes faxes and e-mails.
- BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in the catalogues or brochures of the Supplier are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 14 Business Days from its date of issue. - GOODS
3.1 The Goods are as specified in the Order.
3.2 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the use of the Specification by the Supplier. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements. - DELIVERY
4.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant reference numbers of the Customer and the Supplier, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
(b) if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the expense of the Supplier.
4.2 The Supplier will not be under any liability to replace or repair goods lost or damaged in transit unless written notice shall have been given both to the Carrier and the Supplier, in the case of Loss within 14 DAYS of the Dispatch Date, or in the case of Damage within 3 DAYS of receipt of damaged goods. Goods so damaged must be retained for inspection by the carrier. No responsibility will be accepted for goods that have been inspected by the Customer and accepted as not having any faults or damage.
4.3 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.4 Delivery of the Goods shall be completed on the arrival of the Goods at the Delivery Location. Goods shall be unloaded from transport at the risk of the Customer.
4.5 Any dates quoted for delivery are approximate only and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the failure of the Customer to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 The Supplier shall notify the Customer when the items are ready for dispatch (Dispatch Date). If the goods have not been received within 14 days of the Dispatch Date then the Customer must notify the Supplier of their absence. The Supplier shall not accept any liability for the consequences arising from the loss if the Customer fails to promptly notify the supplier of the missing Goods.
4.7 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the failure of the Customer to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.8 If the Customer fails to take delivery of the Goods within 3 Business Days of the Dispatch Date, then, except where such failure or delay is caused by a Force Majeure Event or the failure of the Supplier to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9:00 am on the third Business Day following the Dispatch Date; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.9 If 10 Business Days after the Dispatch Date the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.10 The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered, provided that any surplus Goods are returned within 28 days of receipt.
4.11 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. - QUALITY
5.1 The Supplier warrants that on delivery the Goods shall:
(a) be free from material defects in design, material and workmanship
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(c) be fit for any purpose held out by the Supplier.
5.2 Subject to clause 5.3, if
(a) the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; and
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the place of business of the Supplier at the cost of the Customer, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for failure of the Goods to comply with the warranty or order acknowledged specification set out in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause or fails to return the goods within 6 months of notification; or
(b) the defect arises because the Customer failed to follow the oral or written instructions of the Supplier as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same; or
(c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer; or
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 The Customer shall notify the carrier at the point of delivery if the Goods have not been received in good condition. If not, the Goods shall be deemed to have been received by the Customer in good condition.
5.5 The Terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from this Contract.
5.6 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.7 Should the Goods be inspected by the Supplier and found not to be faulty, then the Supplier shall be entitled to charge a fee of £350 plus VAT to compensate it for the costs incurred in travelling to the Customer and carrying out the inspection.
5.8 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
- TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
a) the Supplier receiving payment in full (in cash or cleared funds) for the Goods and for any other goods or services that the Supplier has supplied to the Customer;
b) The Customer reselling the Goods
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the bailee of the Supplier;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the property of the Supplier;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and give the Supplier such information relating to the Goods as the Supplier may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business
6.4 Subject to clause 6.5 the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
a) it does so as principal and not as the Supplier’s agent; and
b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then without limiting any other right or remedy the Supplier may have:
a) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
b) the Supplier may at any time:
i) require the Customer to deliver up the Goods in its possession, which have not been resold, or irrevocably incorporated into another product; and
ii)if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them. - PRICE & PAYMENT
7.1 The price of the Goods shall be the price set out in the Order.
7.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the control of the Supplier (including increases in the cost of raw materials since the date of acceptance of the Order, foreign exchange fluctuations, increases in taxes and duties (including import taxes), increases in freight charges and increases in labour, materials and other manufacturing costs); or
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5 The Customer shall pay the invoice in full before any Goods are dispatched.
7.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, setoff or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
- LIMITATION OF LIABILITY
8.1 Nothing in these Conditions shall limit or exclude the liability of the
(b) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); or
(c) fraud or fraudulent misrepresentation; or
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(e) defective products under the Consumer Protection Act 1987; or
(f) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
8.2 Subject to clause 9.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the total liability of the Supplier to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 110% of the price of the Goods. - FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earth-quakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors. - GENERAL
10.1 Assignment and subcontracting.
(a) the Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) the Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
10.2 Notices
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by prepaid first-class post, recorded delivery, commercial courier, fax or e-mail.
(b) a notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or one Business Day after transmission.
(c) the provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.3 Severance
(a) If any provision or part provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieved the intended commercial result of the original provision.
10.4 Waiver
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
10.5 Third party rights.
A person who is not a party to the Contract shall not have any rights under or in connection with it or any right to enforce its terms.
10.6 Variation.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
10.7 Governing law and jurisdiction.
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims.