1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply: “Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business. “Conditions” means the terms and conditions set out in this document. “Contract” means the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions. “Customer” means the person or firm who purchases the Goods from the Supplier. “Force Majeure Event” has the meaning given in Clause 10. “Goods” means the goods (or any part of them) set out in the Order. “Order” means the Customer’s order for the Goods, as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be. “Specification” means any specification for the Goods, including any related plans and drawings that are agreed in writing by the Customer and the Supplier. “Supplier” means Solidor Limited (registered in England and Wales with company number 05433881). “Supplier Branding” means such of the Supplier’s logos, brands and/or content as the Supplier from time to time makes available to the Customer.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
1.2.2 A reference to a party including its personal representatives, successors or permitted assigns.
1.2.3 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.
1.2.4 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.
1.2.5 A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of all and any other terms that the 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 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, representation, assurance or warranty 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 produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced 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 20 Business Days from its date of issue.
3. GOODS
3.1 The Goods are described in the Supplier’s catalogue as modified by any applicable Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including legal and other 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 Supplier’s use of the Specification. This Clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4. DELIVERY
4.1 The Supplier shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, 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; and
4.1.2 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 Supplier’s expense.
4.2 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.
4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
4.4 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 Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 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 Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to collect, accept or take delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
4.6.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods.
4.8 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.
4.9 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.
5. QUALITY
5.1 Subject to Clauses 5.3 and 5.6, the Supplier warrants that on delivery the Goods shall:
5.1.1 conform in all material respects with their description and any applicable Specification;
5.1.2 be free from material defects in design, material and workmanship; and
5.1.3 be fit for any purpose held out by the Supplier.
5.2 Subject to Clauses 5.3 and 5.6, the Supplier warrants that all doors, door frames, glass and high security locking systems that comprise the Goods or part of the Goods shall for a period of 10 years from the date of delivery:
5.2.1 conform in all material respects with their description and any applicable Specification;
5.2.2 be free from material defects in design, material and workmanship; and
5.2.3 be fit for any purpose held out by the Supplier.
5.3 The warranties at Clauses 5.1 and 5.2 shall only apply to Goods (or component parts of Goods) that are manufactured by the Supplier. If any Goods (or component parts of Goods) are not manufactured by the Supplier, the Supplier will use reasonable endeavours to pass on to the Customer the benefit of any applicable manufacturer’s warranty, provided that the Supplier’s liability in respect of any such Goods (or component parts of Goods) shall be limited to such amounts as the Supplier is able to recover from the relevant manufacturer.
5.4 Where the Customer adapts or modifies the Goods or combines them with other goods not supplied by the Supplier:
5.4.1 the Supplier shall use all reasonable care and skill in undertaking the same; and
5.4.2 the warranties at Clauses 5.1 and 5.2 shall not apply to, and the Supplier shall have no liability to the Customer in respect of, any defect or deterioration that can be reasonably attributed to the adaptation or modification of the Goods or their combination with other goods not supplied by the Supplier.
5.5 Subject to Clause 5.6, if:
5.5.1 the Customer gives notice in writing to the Supplier within a reasonable time of delivery that some or all of the Goods do not comply with the warranty set out in Clause 5.1 & 5.2
5.5.2 the Supplier is given a reasonable opportunity of examining such Goods (time being not of the essence in this regard); and
5.5.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.6 The Supplier shall not be liable for Goods failure to comply with the warranty set out in Clause 5.1 & 5.2 in any of the following events:
5.6.1 the Customer makes any further use of such Goods after giving notice in accordance with Clause 5.5;
5.6.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, fabrication, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.6.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
5.6.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
5.6.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.6.6 the Goods differ from their description and/or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.7 Except as provided in this Clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in Clause 5.1.
5.8 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 the Contract.
5.9 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. 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:
6.2.1 the Supplier receiving payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
6.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in Clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in Clause 8.2; and
6.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
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:
6.4.1 it does so as principal and not as the Supplier’s agent; and
6.4.2 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, then, without limiting any other right or remedy the Supplier may have:
6.5.1 the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
6.5.2 the Supplier may at any time: (a) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and (b) if the Customer fails to deliver up promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Supplier’s quotation or the Supplier’s written acceptance of the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
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:
7.2.1 any factor beyond the Supplier’s control (including any increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3 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 Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.6 The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice or such other terms as agreed from time to time. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. The Customer shall pay the interest together with the overdue amount.
7.8 The Customer shall pay all amounts due under the Contract in full without any set-of, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8. TERMINATION AND SUSPENSION
8.1 If the Customer becomes subject to any of the events listed in Clause
8.2 the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
8.2.1 For the purposes of Clause 8.1, the relevant events are: if any encumbrancer takes possession of or a receiver, administrative receiver or similar officer is appointed over any of the property or assets of the Customer or if the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or has an administrator appointed or goes into liquidation or has a resolution for its winding-up passed (except for the purpose of amalgamation or reconstruction not involving insolvency where the resulting entity agrees to be bound by or assumes the obligations imposed on the Customer) or anything analogous to any of these events under the law of any jurisdiction occurs in relation to the Customer or if the Customer ceases or threatens to cease to carry on business.
8.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in Clause
8.3.1 or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.4 On termination of the Contract for any reason the Customer shall immediately:
8.4.1 pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest; and
8.4.2 cease all use of the Supplier Branding.
8.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
8.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
9.1.4 defective products under the Consumer Protection Act 1987; or
9.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 Subject to Clause 9.1:
9.2.1 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: (a) loss of profit, revenue, goodwill, contracts, business opportunity data, or anticipated savings (in each case whether direct or indirect); or (b) any indirect, special or consequential loss arising under or in connection with the Contract; and
9.3 Subject to Clauses 9.1 and 9.2, the Supplier’s total liability 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 100% of the price of the Goods.
10. FORCE MAJEURE
The Supplier shall not 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 the Supplier’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, fres, foods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11. GENERAL
Intellectual Property Rights
11.1 All intellectual property rights created by or on behalf of the Supplier in connection with the Contract shall be and remain the property of the Supplier and the Customer shall do everything necessary to ensure the Supplier has the benefit of this Clause
11.1.1 Use of the Supplier’s branding and logo
11.2 The Supplier grants to the Customer a non-exclusive, personal, royalty free, non-transferable right and licence to use the Supplier Branding in connection with onward sales of the Goods by the Customer, provided that the Customer shall:
11.2.1 comply at all times with any Supplier Branding usage requirements and/or guidance issued by the Supplier from time to time;
11.2.2 obtain the Supplier’s prior written approval in respect of all of its use of the Supplier Branding and only use it in such prior approved form;
11.2.3 under no circumstances use the Supplier Branding in connection with any goods other than the Goods (including modifications to the or additions to the Goods) in such a manner as may cause any person to believe that such goods were manufactured by the Supplier;
11.2.4 not imply any endorsement of the Customer by the Supplier or otherwise lead any person to believe that the Customer is acting in partnership with the Supplier; and
11.2.5 not do anything which may be detrimental to the reputation, image or goodwill of the Supplier.
11.3 The Customer shall make it clear in all correspondence and other materials that it is using the Supplier Branding under licence from the Supplier. All the Customer’s use of the Supplier Branding, and all goodwill arising from such use, shall be for the benefit of the Supplier and the Customer shall assign such goodwill to the Supplier promptly on request to do so.
11.4 The Supplier may revoke the licence granted at Clause 11.2 at any time at its sole discretion. Assignment and other dealings
11.5 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.
11.6 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
NOTICES
11.7 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 pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
11.8 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address, other next working day delivery service, 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 e-mail, one Business Day after transmission.
11.9 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action. Severance.
11.10 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.
11.11 If 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, achieves the intended commercial result of the original provision.
WAIVER
11.12 A waiver of any right or remedy under the Contract or law 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
THIRD PARTY RIGHTS
11.13 A person who is not a party to the Contract shall not have any rights to enforce its terms.
VARIATION
11.14 Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
GOVERNING LAW AND JURISDICTION
11.15 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 the law of England and Wales.
11.16 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 this Contract or its subject matter or formation (including non-contractual disputes or claims).
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