ProGARM Limited – Terms & Conditions of Sale (2020 Edition)
1.1 In these Conditions the following words shall have the following meanings:
“Buyer” the person, firm or company who purchases the Goods from the Company.
“Call Off Agreement” Company’s agreement to supply Buyer with the number of the Goods to be called off by Buyer and invoiced by Company all as specified in the Order or a separate agreement.
“Company” ProGARM Limited or any subsidiary or associated company which supplies Goods to Buyer.
“Conditions” the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) any special terms and conditions agreed in writing between the Company and Buyer.
“Contract” the contract between the Company and Buyer for the sale and purchase of the Goods, incorporating these Conditions.
“Goods” any goods agreed in the Contract to be supplied to Buyer by the Company (including any part or parts of any order for Goods).
“Order” Buyer’s order for the Goods as set out in Buyer’s purchase order and accepted by Company or Buyer’s acceptance of Company’s quotation, as the case may be.
1.2 Words in the singular include the plural and vice versa.
2.1 These Conditions cancel and supersede any earlier conditions of sale of the Company and shall govern the Contract to the exclusion of any terms or conditions which Buyer purports to apply under any purchase order, confirmation of order, specification or other document, or which are implied by trade, custom, practice or course of dealing, and Buyer waives any right which it might have to rely on such terms or conditions.
2.2 No variation to these Conditions or any representation about the Goods shall have effect unless expressly agreed in writing and signed by a director of the Company.
2.3 Each Order for the Goods by Buyer from the Company shall be deemed to be an offer by Buyer to purchase the Goods subject to these Conditions.
2.4 No Order placed by Buyer shall be deemed to be accepted by the Company until the Company has confirmed acceptance of the Order or (if earlier) the Company delivers the Goods to Buyer.
2.5 Buyer shall ensure that the terms of its Order and any applicable specification submitted by Buyer are complete and accurate. The Company shall not be liable to Buyer if such terms or specification are not complete or accurate.
2.6 Any quotation is given on the basis that no contract will come into existence until the Company has confirmed acceptance of Buyer’s Order or (if earlier) delivers the Goods. Any quotation is valid only for all the Goods referred to in the quotation for a period of 28 days from its date, provided that the Company has not previously withdrawn it. The Company may reject an Order which is for only part of the Goods the subject of a quotation.
2.7 The Company may notify to Buyer a credit limit for purchasing the Goods from the Company. The Company shall be entitled to change such credit limit or remove Buyer’s credit terms at any time upon giving notice to Buyer.
Description
3.1 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions, sizes, measurements or illustrations contained in catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in/by them. They shall not form part of the Contract and the Company shall be entitled to correct any error without any liability to Buyer.
3.2 The Company reserves the right to change the specification of the Goods after acceptance of Buyer’s Order provided that such change does not materially alter the characteristics of the Goods.
3.3 The sale of the Goods shall not be a sale by sample.
Delivery
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall be by the Company delivering or arranging delivery of the Goods to Buyer’s place of business (“Delivery Location”). Buyer shall unload the Goods on delivery and shall comply with any health and safety requirements stipulated by the Company. Once the goods have been delivered to the Delivery Location the Buyer takes over all the risks associated with the unloading process and storage as if they were deemed to be owned by the Buyer.
4.2 Delivery of the Goods shall be completed on the arrival of the Goods at the Delivery Location. Delivery charges may apply depending on the value of the Order and the Delivery Location.
4.3 Any date specified by the Company for delivery of the Goods is an estimate only and time for delivery shall not be made of the essence by notice. Where the Company agrees to change the specification or quantity of Goods ordered, the Company shall be entitled to adjust the delivery date accordingly. If no date for delivery has been so specified, delivery will be within a reasonable time.
4.4 Subject to the other provisions of these Conditions, the Company shall not be liable for any loss (including but not limited to loss of profit and consequential loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods nor will any delay entitle Buyer to terminate or rescind the Contract.
4.5 If for any reason Buyer will not take delivery of any of the Goods, the price shall become immediately due and payable and risk in the Goods will pass to Buyer. The Company may store the Goods until actual delivery and Buyer will be liable for all related costs and expenses (including without limitation demurrage, storage and insurance). Without prejudice to the Company’s right to recover from Buyer any sums due to the Company, if Buyer has not collected or taken delivery of the Goods within 14 days from the date upon which the price became due and payable the Company may dispose of the Goods in such manner as the Company may determine.
Shortfalls and Non-Delivery
5.1 The quantity of any consignment of the Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery or any shortfall in the delivery of the Goods unless written notice is given to the Company within seven working days of the estimated date of delivery supplied by the Company or actual delivery, as applicable.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to delivering the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
5.4 Any liability of the Company for any shortfall in the delivery of the Goods shall be limited to making up the shortfall within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
Returns
6.1 Notwithstanding any other provision in the Contract, the Company may at its option in exceptional circumstances allow Buyer to return the Goods and the Buyer will not be charged for such Goods upon the following conditions:
6.1.1 the relevant Goods are undamaged, with all trademarks or other labelling intact and fully suitable for resale;
6.1.2 Buyer notifies the Company within 14 working days of delivery of its intention to return the Goods; and
6.1.4 the Goods are returned to the Company within 21 working days of delivery accompanied by a returns order reference provided by an authorised ProGARM representative;
6.2 The Company shall not accept the return of any Goods where the Buyer has not complied with Condition 6.1 above or where the Goods have been:
6.2.1 altered or modified by Buyer;
6.2.2 marked with Buyer’s trademark or labelling; or
6.2.3 produced to Buyer’s specification.
6.3 Buyer agrees to pay the Company a 20% restocking and handling fee against any returned Goods which are not suitable for immediate resale by the Company. Any additional costs associated with making the Goods resaleable will be charged to the Buyer. Where the Goods cannot be resold either as a result of the condition in which they were returned or an alternative Buyer cannot be found at the time, the Buyer will be liable for the price in full.
Price
7.1 Unless otherwise agreed in writing by the Company, the price for the Goods shall be the price in force at the date of acceptance of Buyer’s Order. The price for the Goods shall be exclusive of value added tax (where applicable) and delivery charges (where applicable), which sums Buyer shall pay at the same time.
7.2 The Company shall be entitled at any time prior to delivery of the Goods to increase the price of the Goods to reflect any increase in the cost of the Goods to the Company after acceptance of Buyer’s Order which is due to factors beyond the Company’s reasonable control including, without limitation, currency exchange rate fluctuations, changes in raw material costs, changes in labour rates, increases in taxes and duties and any other increase incurred by the Company in respect of the Goods.
7.3 The Company reserves the right to adjust the price of any Goods to reflect any alteration to the specification of the Goods agreed between the Company and Buyer after acceptance of Buyer’s Order.
Payment
8.1 Subject to Condition 8.3 and unless otherwise notified in writing by the Company to Buyer, payment of the price for the Goods and any other charges and sums due under the Contract is due within 30 days from the invoice date. Time for payment shall be of the essence. No payment shall be deemed to have been received until the Company has received cleared funds.
8.2 All sums payable to the Company under the Contract shall become due immediately upon termination of the Contract despite any other provision.
8.3 Any issues relating to an invoice must be communicated to the Company in writing within seven days of the date of the invoice.
8.4 Buyer shall make all payments due under the Contract without any deduction by way of set-off, counterclaim, discount, abatement or otherwise.
8.5 If Buyer fails to pay the Company any sum due pursuant to the Contract the Company shall be entitled, at its option, to terminate the Contract or suspend performance of the Company’s obligations under the Contract or under any other contract between the Company and Buyer and/or charge Buyer interest on such sum from the due date for payment at the annual rate of 8% (this is as per the Late Payment of Commercial Debts Regulations 2013) above the base lending rate from time to time of Bank of England accruing on a daily basis until payment is made, whether before or after any judgment. Alternatively, the Company shall be entitled to charge Buyer interest and compensation in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended by the Late Payment of Commercial Debts Regulations 2013. In addition to interest, the Company shall be entitled to recover from Buyer such legal costs as are incurred in the recovery of sums due and owing to the Company.
8.6 The Company may at any time set off any liability of Buyer to the Company against any liability of The Company to Buyer, whether such liability is present or future, liquidated or unliquidated, under the Contract or otherwise.
8.7 Credit Accounts
8.7.1 Credit accounts may only be opened at the Company’s discretion and are subject to:
a) the Company obtaining a signed account application form from Buyer;
b) the Company obtaining satisfactory references in respect of Buyer; and
c) the Company being satisfied that it will receive a minimum of £3000 in orders for Goods per annum (or such other amount as the Company may determine in its absolute discretion) from Buyer.
8.7.2 If the Company has agreed to operate a credit account for Buyer, such credit account shall be governed by these Conditions and the terms of the account opening form or such other terms as are notified by the Company to Buyer.
8.7.3 The Company may set a maximum amount of credit allowable upon each account and may, in its absolute discretion, withdraw credit facilities at any time and without explanation. Any outstanding balance due to Company from Buyer would become payable immediately from the date of the withdrawal of credit facilities by Company.
8.7.4 Buyer agrees that the Company may obtain references as to Buyer’s financial status. Any change to Buyer’s financial status must be notified in writing to the Company immediately.
Call Off Agreement
9.1 Where Company agrees to a Call Off Agreement as part of the Contract, Buyer shall purchase from Company all the Goods specified in the Call Off Agreement (“the Agreed Goods”) and shall call off the Agreed Goods within the period specified in the Call Off Agreement (“the Agreed Period”) in accordance with the arrangements set out in the Call Off Agreement, or where no specific arrangements have been agreed, the Agreed Goods shall be called off in equal quantities over the Agreed Period.
9.2 Buyer acknowledges that notwithstanding the arrangements for the Agreed Goods accepted by Company in the Call Off Agreement, Company shall be entitled at any time during or after the Agreed Period to invoice Buyer for the full price of all Agreed Goods (whether or not called off) that have not been invoiced by Company, whereupon Company’s obligation to hold or store the Agreed Goods shall cease and Buyer shall collect all the Agreed Goods then held or stored by Company and shall pay Company’s invoice for such Agreed Goods in accordance with the payment terms set out in Condition 8. Unless otherwise agreed in writing, Buyer shall only be entitled to collect the Agreed Goods then held or stored by Company when Company has confirmed to Buyer that it has received payment in full in cleared funds in respect of those Agreed Goods.
9.3 If Buyer fails to pay for all the Agreed Goods in accordance with Condition 9.2 or fails to collect all the Agreed Goods held or stored by Company within 7 days of Company’s confirmation that Company has received cleared funds is in respect of the Agreed Goods, Company shall be entitled to dispose of such Agreed Goods upon giving 7 days’ written notice to Buyer.
Risk and Ownership
10.1 The Goods shall be at the risk of Buyer from the time of delivery.
10.2 Ownership of the Goods shall not pass to Buyer until the Company has received in full in cash or cleared funds:
10.2.1 all sums payable in respect of the Goods; and
10.2.2 all other sums which are or which become payable to the Company from Buyer on any account including any interest on such sums.
10.3 Until ownership of the Goods has passed to Buyer, Buyer shall:
10.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
10.3.2 store the Goods (at no cost to the Company) separately to other goods of Buyer or any third party in a way that they remain readily identifiable as the Company’s property;
10.3.2 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
10.3.3 maintain the Goods in satisfactory condition insured for their full price against all risks and hold the proceeds of insurance on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account; and
10.3.4 notify the Company immediately if it becomes subject to any of the events listed in Condition 10.5.
10.4 Buyer may resell the Goods before ownership has passed to it solely on the condition that any sale shall be on Buyer’s own behalf in the ordinary course of Buyer’s business at full market value and Buyer shall deal as principal when making such sale.
10.5 Buyer’s right to possession of the Goods shall terminate immediately and all sums shall become due and payable immediately and Buyer agrees that the Company shall have the right to rescind or terminate the Contract and/or to suspend any further deliveries under the Contract if any of the following events, or the Company reasonably believes that any of the following events will, happen:
10.5.1 Buyer has a bankruptcy order made against it or makes an arrangement or composition with its creditors or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors or (being a body corporate) convenes a meeting of creditors or enters into liquidation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of Buyer or notice of intention to appoint an administrator is given by Buyer or its directors or by a qualifying floating charge holder, or a resolution is passed or a petition presented for the winding up of Buyer or for the granting of an administration order in respect of Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of Buyer; or
10.5.2 Buyer encumbers or in any way charges any of the Goods or suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between The Company and Buyer, or is unable to pay its debts or Buyer ceases to trade.
10.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
10.7 Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where Buyer’s right to possession has terminated, to recover them.
10.8 Where the Company is unable to determine whether any Goods are the goods in respect of which Buyer’s right to possession has terminated, Buyer shall be deemed to have sold all goods of the kind sold by the Company to Buyer in the order in which they were invoiced to Buyer.
10.9 On termination of the Contract, howsoever caused, the Company’s (but not Buyer’s) rights contained in this Condition 10 shall remain in effect.
Warranty
11.1 The Company warrants (subject to the other provisions of these Conditions) that upon delivery the Goods will comply with the specification for the Goods, subject to any qualification contained in the specification.
11.2 The Company shall not be liable for a breach of the warranty in Condition 11.1 unless:
11.2.1 Buyer gives written notice of any defect to the Company within 14 working days of delivery; and
11.2.2 The Company is given a reasonable opportunity of examining the Goods and Buyer (if asked to do so by the Company) returns the Goods to the Company’s place of business for the examination to take place there.
11.3 The Company shall not be liable for a breach of the warranty in Condition 11.1 if:
11.3.1 Buyer makes any further use of the Goods after giving notice of any defect;
11.3.2 the defect arises because Buyer failed to follow the Company’s instructions as to the storage or use of the Goods or good trade practice;
11.3.3 Buyer alters or modifies the Goods without the prior written consent of the Company;
11.3.4 the defect arises as a result of the Company following any specification supplied by Buyer; or
11.3.5 the Goods differ from their specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
11.4 Subject to Conditions 11.2 and 11.3, if any of the Goods do not conform with the warranty in Condition 11.1 the Company shall at its option replace such Goods or refund the price of such Goods at the pro rata Contract rate and shall have no further liability for breach of the warranty in Condition 11.1 in respect of such Goods. If the Company so requests, Buyer shall, at the Company’s reasonable expense, return the Goods or the parts of such Goods which are defective to the Company.
11.5 These Conditions shall apply to any replacement Goods supplied by the Company.
Limitation of Liability
12.1 Subject to Conditions 4, 5, 11 and 13, the following provisions set out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Buyer in respect of any:
12.1.1 breach of these Conditions;
12.1.2 use made or resale by Buyer of any of the Goods, or of any product incorporating the Goods; and
12.1.3 representation, statement or tortious act or omission, including negligence, arising under or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
12.3 Nothing in these Conditions excludes or limits the liability of the Company:
12.3.1 for death or personal injury caused by the Company’s negligence;
12.3.2 under section 2(3) of the Consumer Protection Act 1987;
12.3.3 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
12.3.4 for fraud or fraudulent misrepresentation.
BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 12.4
12.4 Subject to Conditions 12.2 and 12.3:
12.4.1 The Company shall not be liable to Buyer for any pure economic loss, loss of profit, goodwill, business opportunity or production downtime or any type of indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract; and
12.4.2 The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price of the Goods the subject of the claim.
Product Recall
13.1 Buyer shall retain all batch records and product information relating to the Goods and make them available to Company on request and advise Company of the location of all Goods on request.
13.2 If either party becomes aware of any defect with the Goods delivered or any order from a competent court or regulatory authority requiring the Goods to be withdrawn from sale or any other material error in respect of the use of the Goods, it shall notify the other party immediately.
13.3 In the event that Company recalls any Goods (“Affected Goods”):
13.2.1 Buyer shall co-operate with Company to ensure a prompt and effective product recall in respect of those Affected Goods, including, if requested by Company, Buyer at its own cost carrying out a product recall of any Affected Goods sold by Buyer to its customers and/or issuing any notification to Buyer’s customers about the manner of use or safety of the Affected Goods already sold by Buyer; and
13.2.4 where the withdrawal, recall or destruction of Affected Goods is directly caused, or contributed to by Buyer’s wilful act or mission or negligence, Buyer shall indemnify Supplier against all losses suffered and costs incurred by Company arising out of any withdrawal, recall or destruction of Affected Goods pursuant to this Condition 13.
Intellectual Property Rights
14.1 Buyer shall not use the Company’s name, logo or other intellectual property rights in advertising or publicity without the Company’s prior written consent.
14.2 Where the Goods are produced to Buyer’s specification, Buyer shall indemnify the Company 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 professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the specification. This Condition 14.2 shall survive termination or completion of the Contract.
Events beyond the Company’s control
The Company reserves the right to defer the date of delivery or to cancel the Contract or to reduce the volume of the Goods ordered by Buyer (without liability to Buyer and without prejudice to the Company’s right to recover all sums owed to it by Buyer in respect of consignments delivered and costs incurred prior to the date of such deferment, cancellation or reduction) if the Company is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war, national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, pandemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable raw materials.
General
16.1 Buyer shall not assign the Contract or any part of it without the prior written consent of the Company.
16.2 The Company shall be entitled to assign the Contract or any part of it to any person, firm or the Company.
16.3 If any provision of the Contract 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 Contract and the remainder of such provision shall continue in full force and effect.
16.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
16.5 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
16.6 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
16.7 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
16.8 Subject to Conditions 16.1 and 16.2, nothing in these Conditions confers on any third party any benefit or any right to enforce any of these Conditions.
16.9 Nothing in the Contract excludes the statutory rights of consumers.
16.10 The Contract constitutes the entire agreement between the parties. Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract.
16.11 The Contract shall be governed by and construed in all respects in accordance with the laws of England and Wales.
16.12 The Courts of England and Wales shall have exclusive jurisdiction over any claim or matter arising under or in connection with the Contract or its subject matter or formation (including non-contractual claims) save that nothing in this Condition 16.12 shall limit the right of Company to bring proceedings in any other court of competent jurisdiction.
