Riverbank Electrical Wholesalers Limited - Terms And Conditions of Sale

Interpretation

1.1 In these Terms:

"CONTRACT" means the contract for the sale and purchase of the Products;
"CUSTOMER" means the person firm or company who accepts the Sellers's Written quotation for the sale of the Products or whose Written order for the Products is accepted by the Seller;
"PRODUCT(S)" means the product(s) (including any instalment of the product or any part for them) which the Seller is to supply in accordance with these Terms;
"SELLER" means Riverbank Electrical Wholesalers Limited whose registered office is at 1 Simonsburn Road Kilmarnock Scotland KA1 5LA;
"TERMS" means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Customer and the Seller;
"WEEE" means waste electrical and electronic equipment as defined in the WEEE Regulation;
"WEEE REGULATION" means The Waste Electrical and Electronic Regulations 2006 (SI 2006/ 3289);
"WRITING", and any similar expression, includes facsimile transmission but not electronic mail or other forms of electronic communications.

1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.

2. Basis of the sale

2.1 The Seller shall sell and the Customer shall purchase the Products in accordance with the Seller's Written quotation (if accepted by the Customer), or the Customer's Written order (if accepted by the Seller), subject in either case to these Terms, which shall govern the Contract to the exclusion of any other term subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.

2.2 No variation to these Terms shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.

2.3 The Seller's employees or agents are not authorised to make any representations concerning the Products unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.

2.4 Any advice or recommendation given by the Seller or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Products which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Customer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.

2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

3. Orders and specifications

3.1 No order submitted by the Customer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller's authorised representative.

3.2 The Customer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer, and for giving the Seller any necessary information relating to the Products within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

3.3 The quantity, quality and description of the Products and any specification for them shall be as set out in the Seller's quotation (if accepted by the Customer) or the Customer's order (if accepted by the Seller).

3.4 If the Products are to be manufactured or any process is to be applied to the Products by the Seller in accordance with a specification submitted by the Customer, the Customer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of, any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Customer's specification.

3.5 The Seller reserves the right to make any changes in the specification of the Products which are required to conform with any applicable statutory or E.U. requirements or, where the Products are to be supplied to the Seller's specification, which do not materially affect their quality or performance.

3.6 No order which has been accepted by the Seller may be cancelled by the Customer except with the agreement in Writing of the Seller and on terms that the Customer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

4. Price of the goods

4.1 The price of the Products shall be the Seller's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller's published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or until earlier acceptance by the Customer, after which time they may be altered by the Seller without giving notice to the Customer.

4.2 The Seller reserves the right, by giving Written notice to the Customer at any time before delivery, to increase the price of the Products to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller, any change in delivery dates, quantities or specifications for the Products which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Seller adequate information or instructions.

4.3 The price is exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to the Seller.

5. Terms of payment

5.1 Subject to any special terms agreed in Writing between the Customer and the Seller, the Seller may invoice the Customer for the price of the Products on or at any time after delivery of the Products, unless the Products are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Products, in which event the Seller shall be entitled to invoice the Customer for the price at any time after the Seller has notified the Customer that the Products are ready for collection or (as the case may be) the Seller has tendered delivery of the Products.

5.2 The Customer shall pay the price of the Products (less any discount to which the Customer is entitled, but without any other deduction) within 30 days of the date of the Seller's invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Products has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract.

5.3 If the Customer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:

5.3.1 cancel the contract or suspend any further deliveries to the Customer;

5.3.2 appropriate any payment made by the Customer to such of the Products (or the goods supplied under any other contract between the Customer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Customer); and

5.3.3 charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 5 per cent per annum above Barclays Bank Plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

6. Delivery

6.1 Unless otherwise agreed in writing with the Customer, the Seller shall deliver the Products to the delivery address stated on the Seller's Written quotation or the Customer's Written order or otherwise agreed in writing between the parties.

6.2 All deliveries to mainland UK are carriage paid except where specific services are specified and agreed with the Customer.

6.3 Any dates quoted for delivery of the Products are approximate only and the Seller shall not be liable for any delay in delivery of the Products however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in Writing. The Products may be delivered by the Seller in advance of the quoted delivery date on giving reasonable notice to the Customer.

6.4 Where the Products are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.

6.5 If the Seller fails to deliver the Products (or any instalment) for any reason other than any cause beyond the Seller's reasonable control or the Customer's fault, and the Seller is accordingly liable to the Customer, the Seller's liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Products.

6.6 If the Customer fails to take delivery of the Products or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer's reasonable control or by reason of the Seller's fault) then, without limiting any other right or remedy available to the Seller, the Seller may:

6.6.1 store the Products until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or

6.6.2 sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.

7. Risk and property

7.1 Risk of damage to or loss of the Products shall pass to the Customer:

7.1.1 in the case of Products to be delivered at the Seller's premises, at the time when the Seller notifies the Customer that the Products are available for collection; or

7.1.2 in the case of Products to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Products, the time when the Seller has tendered delivery of the Products.

7.2 Notwithstanding delivery and the passing of risk in the Products, or any other provision of these Terms, the property in the Products shall not pass to the Customer until the Seller has received in cash or cleared funds payment in full of the price of the Products and all other goods agreed to be sold by the Seller to the Customer for which payment is then due.

7.3 Until such time as the property in the Products passes to the Customer, the Customer shall hold the Products as the Seller's fiduciary agent and bailee, and shall keep the Products separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Seller's property, but the Customer may resell or use the Products in the ordinary course of its business.

7.4 Until such time as the property in the Products passes to the Customer (and provided the Products are still in existence and have not been resold), the Seller may at any time require the Customer to deliver up the Products to the Seller and, if the Customer fails to do so forthwith, enter on any premises of the Customer or any third party where the Products are stored and repossess the Products.

7.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of the Seller, but if the Customer does so all moneys owing by the Customer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.

8. WEEE Compliance

8.1 The Customer shall:

8.1.1 be responsible for financing the collection, treatment, recovery and environmentally sound disposal of:

8.1.1.1 all WEEE arising or deriving from the Products; and

8.1.1.2 all WEEE arising or deriving from the Products placed on the market prior to 13 August 2005 where such Products are to be replaced by the Products and the Products are of an equivalent type or are fulfilling the same function as that of such Products;

8.1.2 comply with all additional obligations placed upon the Customer by the WEEE Regulation by virtue of the Customer accepting the responsibility set out in clause 8.1.1; and

8.1.3 provide the Customer's WEEE compliance scheme operator with such data, documents, information and other assistance as such scheme operator may from time to time reasonably require to enable such operator to satisfy the obligations assumed by it as a result of the Seller's membership of the operator's compliance scheme.

8.2 The Customer shall be responsible for all costs and expenses arising from and relating to its obligations in clause 8.1.

8.3 Further information in respect of the arrangements set out in clause 8.1 can be found at www.electrolink.eu.com by clicking on the "WEEE FINAL USERS" button and quoting WEEE registration number [WEE/FC0060TU] where prompted.

9. Warranties and liability

9.1 Subject to the following provisions the Seller warrants that the Products will correspond with their manufacturer's specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months.

9.2 The above warranty is given by the Seller subject to the following conditions:

9.2.1 the Seller shall be under no liability in respect of any defect in the Products arising from any drawing, design or specification supplied by the Customer;

9.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in Writing), misuse or alteration or repair of the Products without the Seller's approval;

9.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Products has not been paid by the due date for payment;

9.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.

9.3 Subject as expressly provided in these Terms, and except where the Products are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

9.4 Where the Products are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by these Terms.

9.5 A claim by the Customer which is based on any defect in the quality or condition of the Products or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to the Seller in writing within 72 hours from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Customer does not notify the Seller accordingly, the Customer shall not be entitled to reject the Products and the Seller shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Products had been delivered in accordance with the Contract.

9.6 Some Products incorporate glass components. These Products are clearly labelled. The Customer must inspect these Products upon receipt and any breakages must be reported within 24 hours. Claims made after this time or after the Products have left the original delivery address will not be considered.

9.7 The Customer must, when making a claim under clause 9.5, submit relevant paperwork and state the original invoice number and a Riverbank Electrical Returns Number (which can be obtained from the Seller's Sales Department).The Products shall be returned by the Customer to the Seller at the Customer's own costs.

9.8 Where a valid claim under clause 9.5 has been submitted and provided clause 9.7 has been complied with, the Seller at the Seller's sole discretion, may replace the Products (or the part in question) free of charge or have the Products repaired.

9.9 Returns resulting from order cancellation must be agreed in advance. Assuming an agreement to restock is reached, the Product must be returned in its original undamaged packaging and in pristine condition. A handling charge will apply.

9.10 Except in respect of death or personal injury caused by the Seller's negligence, or liability for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Products (including any delay in supplying or any failure to supply the Products in accordance with the Contract or at all) or their use or resale by the Customer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Products, except as expressly provided in these Terms.

9.11 The Seller shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller's obligations in relation to the Products, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control:

9.11.1 Act of God, explosion, flood, tempest, fire or accident;

9.11.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;

9.11.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

9.11.4 import or export regulations or embargoes;

9.11.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);

9.11.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;

9.11.7 power failure or breakdown in machinery.

10. Insolvency of the Customer

10.1 This clause 10 applies if:

10.1.1 the Customer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or a moratorium comes into force in respect of the Customer (within the meaning of the Insolvency Act 1986); or

10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or

10.1.3 the Customer ceases, or threatens to cease, to carry on business; or

10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.

10.2 If this clause applies then, without limiting any other right or remedy available to the Seller, the Seller may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Products have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

11. General

11.1 A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at its registered office or 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 the notice.

11.2 No waiver by the Seller of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.

11.3 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.

11.4 The Contract shall be governed by the laws of Scotland, and the Customer agrees to submit to the non-exclusive jurisdiction of the Scottish courts.