In these conditions of sale ("Conditions"), unless the context requires otherwise:
"Supplier" means Kee Safety Limited (Company number 3182766) whose registered office is at Cradley Business Park, Overend Road, Cradley Heath, West Midlands, B64 7DW;
"Buyer" means the company, firm, body or person purchasing the Goods and/or Services;
"Goods" means the goods set out in the Order which the Supplier is to supply in accordance with these Conditions;
"Installation Conditions" means the Supplier's additional conditions of trading in relation to installation Services as updated from time to time by the Supplier and not set out in these Conditions;
"Intellectual Property Rights" includes patents, inventions, know-how, trade secrets and other confidential information, registered designs, copyrights, database rights, design rights, rights affording equivalent
protection to copyright, database rights and design rights, semiconductor topography rights, trademarks, service marks, logos, domain names, business names, trade names, moral rights, and all registrations or
applications to register any of the aforesaid items, rights in the nature of any of the aforesaid items in any country or jurisdiction, rights in the nature of unfair competition rights and rights to sue for passing-off;
"Order" means a purchase order in respect of the Goods and/or Services issued by the Buyer to the Supplier;
"Services" means work and/or services or any of them to be performed by the Supplier for the Buyer pursuant to an Order.
1.1 These Conditions shall be incorporated into each contract ("Contract") for the supply of Goods and/or Services by the Supplier. The Contract will be subject to these Conditions alone (together with the Installation Conditions if installation Services are supplied). All terms and conditions appearing or referred to in an Order or otherwise stipulated by the Buyer shall have no effect.
1.2 No Order shall be deemed to be accepted by the Supplier until a written acknowledgement of it is issued by the Supplier or (if earlier) the Supplier delivers the Goods and/or commences the provision of Services to the Buyer.
1.3 Any variation of the Contract must be expressly agreed in writing and signed by the Supplier's duly authorised representative.
1.4 Any description contained in the Supplier's catalogues, samples, price lists or other advertising material is intended merely to present a general picture of the Supplier's Goods or Services and shall not form a representation or be part of the Contract.
1.5 Any quotation issued by the Supplier may be amended or withdrawn at any time prior to the formation of any contract concluded by reference thereto.
1.6 Where Goods are to be supplied from stock, such supply is subject to availability of stocks at the date of delivery.
2. SPECIFICATIONS, NON STANDARD ORDERS, ALTERATIONS
2.1 If Goods and/or Services are supplied in accordance with the Buyer's specifications ("Specifications") the Buyer shall be solely responsible for the Specifications and ensuring that they are suitable and accurate.
2.2 The Supplier reserves the right to make any changes in the Specification of the Goods which are required to conform with any applicable statutory or EU requirements.
2.3 The Buyer shall be responsible for supplying the Specifications and any necessary information relating to the Goods and/or Services within a sufficient time to enable the Supplier to perform the Contract in accordance with its terms.
2.4 The Supplier shall, prior to delivery, be entitled at its discretion to substitute for the Goods forming the subject of the Order similar goods from the same or an alternative source, or to make modifications or alterations to the Goods provided that:
2.4.1 in the case of substituted Goods, the alternative goods supplied shall be of equivalent or better quality or performance to the substituted Goods;
2.4.2 in the case of modified and altered Goods, such modifications or alterations to the Goods shall not materially affect their quality or performance.
3. CANCELLATION OR VARIATION OF ORDERS
No contract may be cancelled, suspended or varied by the Buyer except with the agreement in writing of the Supplier and on terms that the Buyer shall indemnify the Supplier 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 Supplier as a result of a cancellation, suspension or variation.
4.1 Packaging for the Goods shall be at the discretion of the Supplier which shall have the right to pack the Goods in such manner and with such materials and in such quantities as it in its absolute discretion thinks fit unless detailed packaging instructions are received from the Buyer and agreed in writing by the Supplier prior to agreeing a price for the Goods.
4.2 Unless otherwise specified, packing cases and packing materials will be charged extra but, where stated to be returnable, will be credited in full on return to the Supplier's works carriage paid in good condition, within one month of receipt by the Buyer. Where not returnable, the Buyer will dispose of all packing in accordance with all regulations (whether statutory or otherwise) relating to the protection of the environment.
4.3 The Supplier uses all reasonable endeavours to ensure, where necessary, suitability of packing before despatch, but no claim will be accepted by the Supplier for breakage or damage in transit on the ground of alleged unsuitability for packing.
5.1 All prices shall be as stated by the Supplier. Any acceptance by the Buyer of a quotation given by the Supplier shall constitute an Order.
5.2 Except as otherwise stated under the terms of any quotation or in any price list of the Supplier and unless otherwise agreed in writing between the Buyer and the Supplier, all prices are given by the Supplier on an ex works basis, and where the Supplier agrees to deliver the Goods otherwise than at the Supplier's premises, the Buyer shall l be liable to pay the Supplier's charges for transport, packaging and insurance and other incidental costs.
5.3 The Supplier reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods and/or Services to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier, any change in delivery dates, quantities or specifications for the Goods and/or Services which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Supplier adequate information or instructions.
5.4 The Supplier reserves the right to invoice the Buyer for any additional goods or services reasonably required in order to provide the Services.
5.5 Where the price for the Goods or Services is varied in accordance with Condition 5.3 or 5.4 the price as varied shall be binding on both parties.
5.6 There shall be added to the price for the Goods or Services any cost of value added tax and any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods or performance of the Services (whether initially charged on or payable by the Supplier or the Buyer).
5.7 Quotations in a currency other than sterling are based on the rate of exchange at the time of quoting and unless otherwise stated the price may be subject to revision up or down if any different rate of exchange is ruling at the date of invoice.
5.8 The Supplier shall be entitled to levy, in addition to the price of the Goods or Services, small order charges as applicable from time to time.
5.9 The Supplier may, in its absolute discretion, grant to the Buyer a discount on stated prices for the Goods, provided payment therefor is received by the Supplier prior to the due date and shall be entitled to withdraw such discount facility at its absolute discretion.
6. TERMS OF PAYMENT
6.1 Subject to any special terms agreed in writing between the Supplier and the Buyer, liability for payment shall arise in respect of Goods supplied, on delivery and in respect of Services supplied, upon completion thereof. The Supplier shall be entitled accordingly to invoice the Buyer for the price of the Goods and/or Services on or at any time after delivery or completion respectively, unless:
6.1.1 in the case of Goods, these are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Supplier shall be entitled to invoice the Buyer for the price at any time after the Supplier has notified the Buyer that the Goods are ready for collection or (as the case may be) the Supplier has tendered delivery of the Goods and the Supplier shall be entitled to charge the Buyer for storage, insurance and other expenses reasonably incurred or suffered by the Supplier as a result of such failure but the Supplier shall not be bound to take any steps for the custody or care of the Goods (such goods being at the Buyer's risk) or be liable (to the fullest extent that exclusion is permitted by law) for any loss or damage suffered by the Buyer as a result of the Buyer's failure to collect or take delivery; or
6.1.2 in the case of Services, the Buyer fails to make such arrangements as are required by the Supplier to carry out the Services in accordance with Condition 7.3 in which event the Supplier shall be entitled to invoice the Buyer for the price at any time after the date on which it should otherwise have commenced provision of the Services.
6.2 When deliveries are spread over a period each consignment will be invoiced as despatched and each month's invoices will be treated as a separate account and be payable accordingly.
6.3 Unless otherwise agreed by the Supplier, the Buyer shall pay the price of the Goods and/or Services (less any discount agreed in writing by the Supplier, but without any other deduction or set-off) within 21days from the end of the month following the date of the Supplier's invoice.
6.4 Time of payment shall be of the essence. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
6.4.1 cancel the Contract or suspend any further deliveries or performance under the Contract or any other contract so long as the default continues; and/or
6.4.2 charge the Buyer interest (both before and after any judgment) on the amount unpaid in accordance with the Late Payment of Commercial Debts Regulations 2002 until payment in full is made; and/or
6.4.3 withdraw or cancel immediately any discount for prompt payment which has been agreed with or has been granted to the Buyer or to which the Buyer is entitled and debit the Buyer's account accordingly; and/or
6.4.4 withdraw any credit facilities that the Buyer may have with the Supplier.
7. DELIVERY AND COMPLETION DATES
7.1 Delivery shall take place when the Goods are unloaded at or delivered to the Buyer's premises or other delivery location agreed between the Supplier and the Buyer except that:
7.1.1 if the Buyer collects or arranges collection of the Goods from the Supplier's premises, or nominates a carrier for the Goods, delivery shall take place when the Goods are loaded on to the Buyer's or carrier's vehicle; or
7.1.2 if the Goods are ready to be despatched from the premises of the Supplier to the Buyer and the Buyer has failed or refused to provide the Supplier with detailed delivery instructions and/or the place for delivery has not been agreed in writing by the Supplier, delivery shall take place when the Supplier has notified the Buyer that it is awaiting specific delivery instructions and/or that the place for delivery has not been agreed.
7.2 If the Order does not set out specific delivery and/or installation dates then without prejudice to the provisions of Condition 1.2, the date(s) for delivery and/or installation shall be agreed between the Parties, acting reasonably, subsequent to the date of the Contract.
7.3 Subject to Condition 7.4, the dates for performance and completion of the Services shall be as agreed between the parties and the Buyer shall permit the Supplier all necessary and safe access to its premises or procure such permission when installation is to occur at premises not owned by it to enable the Supplier to perform the Services. The Buyer shall comply with all instructions and perform all steps required by the Supplier to enable the Supplier to perform the Services.
7.4 The dates for delivery of the Goods or for performance of the Services are approximate and time is not of the essence for delivery or performance.
7.5 The Buyer shall accept immediate delivery or arrange to collect the Goods or arrange suitable storage, failing which the Supplier may either:
7.5.1 effect delivery by whatever means it considers most appropriate; or
7.5.2 arrange storage at the Buyer's risk and expense pending delivery; or
7.5.3 resell or otherwise dispose of the Goods without prejudice to any other rights the Supplier may have against the Buyer for breach of contract or otherwise.
7.6 The Buyer shall indemnify the Supplier against all costs, losses and expenses suffered or incurred as a result of its failure to accept immediate delivery.
7.7 Where the Contract provides for delivery by instalments each instalment shall constitute a separate contract and any delay, failure or defect in any one or more instalments delivered shall not entitle the Buyer to reject or cancel delivery or performance of any further instalment of the Contract or any other order from the Buyer or to repudiate the Contract.
7.8 The quantity of the Goods delivered under the Contract shall be recorded by the Supplier upon despatch from the Supplier's premises and the Supplier's record shall be accepted by the Buyer as conclusive evidence of the quantity delivered.
8. EXAMINATION; CLAIMS; RETURN OF GOODS
8.1 The Buyer shall examine the Goods upon delivery, or, in respect of the sale of Goods outside the United Kingdom, upon receipt and the Buyer shall:
8.1.1 notify in writing the Supplier and the carrier where relevant within three working days of the proposed date of delivery of any non-delivery or short delivery;
8.1.2 notify in writing the Supplier and the carrier where relevant within three working days of such delivery or receipt of any apparent damage, defect or shortage;
8.1.3 notify in writing the Supplier within three working days of such delivery or receipt of any goods despatched by the Supplier to the Buyer in error.
8.2 Notification under Condition 8.1 shall be first made by telephone then by notice in writing delivered by facsimile or by first class recorded delivery mail (if within the UK) or by courier (if outside the UK) and
addressed to the Supplier at the Supplier's address contained herein unless specified otherwise by the Supplier.
8.3 The Buyer shall comply with the carrier's rules, regulations and requirements so as, when appropriate, to enable the Supplier to make a claim against the carrier in respect of any damage or loss in transit.
8.4 In default of notification pursuant to the provisions of this Condition 8, subject to any claim which the Buyer may have under Condition 9, the Supplier shall be deemed conclusively to have properly performed its obligations under the Contract.
8.5 The Supplier may at its sole discretion take back any Goods which the Buyer does not require and issue to the Buyer a credit note for the price of such Goods provided that:
8.5.1 the Buyer has not used the Goods;
8.5.2 the Goods are not in any way damaged or altered from the condition in which they were delivered to the Buyer;
8.5.3 the Goods were at all times stored indoors by the Buyer in packaging giving the Goods protection equivalent to or better than that afforded by the packaging in which the Goods were delivered to the Buyer;
8.5.4 the Buyer shall pay the Supplier's reasonable costs of collecting and re-stocking the Goods; and
8.5.5 the Buyer shall render all reasonable assistance in the arrangements for collection and return of the Goods.
8.6 The Supplier shall be under no obligation to accept the return of Goods except in accordance with Conditions 8.1.2, 8.1.3, 9 and 11.
9. WARRANTY; LIMIT OF RESPONSIBILITY
9.1 In respect of any component of any Goods supplied which is not manufactured by the Supplier, the warranties given by the Supplier will be equivalent to the warranty (if any) which the Supplier received from the manufacturer or supplier of such component but not so as to impose a liability greater than that imposed on the Supplier by the warranty in Condition 9.2 and the warranties given pursuant to this Condition shall in any event apply only if the Buyer has given the Supplier written notice and satisfactory proof of any relevant defect within the applicable period specified in Condition 9.2.
9.2 The Supplier warrants that (subject to the other provisions of these Conditions and to the exclusion of the components the subject of Condition 9.1) for a period of 12 months from the date of delivery, the Goods
will be free from material defects in workmanship or material provided that the fastenings which form part of the Goods are not guaranteed against corrosion.
9.3 The Supplier shall not be liable for a breach of the warranty in Condition 9.2 unless:
9.3.1 The Buyer gives written notice of the defect to the Supplier, and (if the defect is as a result of damage in transit) to the carrier, within seven days of the time when the Buyer discovers or ought to have discovered the defect and shows to the satisfaction of the Supplier that the Goods are defective in workmanship or material; and
9.3.2 The Supplier is given a reasonable opportunity after receiving the notice of the defect to examine such Goods and the Buye r (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Buyer's cost for the examination to take place there.
9.4 The Supplier shall not be liable for a breach of the warranty in Condition 9.2 if:
9.4.1 the Buyer makes any further use of such Goods after giving such notice;
9.4.2 the defect arises because the Buyer failed to use the Goods in their ordinary course or failed to follow the Supplier's oral or written instructions or advice (including without limitation any technical literature/manual as made available by the Supplier from time to time) as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
9.4.3 the Buyer (or any third party) alters, replaces, repairs or fits parts to the Goods which were not supplied by the Supplier, or without the written consent of the Supplier;
9.4.4 the Goods have been stored, handled or applied in such a way that damage is likely to occur;
9.4.5 the defect in the Goods arises from any free issue materials or any drawing, design or specification supplied by the Buyer;
9.4.6 the defect arises as a result of fair wear and tear, wilful damage or negligence of the Buyer or abnormal working conditions; or
9.4.7 the Buyer has incorporated the Goods (other than with the prior approval of the Supplier) into structures including, without limitation, structures which contain fittings similar to the Goods which are not produced by the Supplier.
9.5 Subject as expressly provided in Conditions 9.1, 9.2 and 9.3, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.6 Subject to Conditions 9.3 and 9.4, if any of the Goods do not conform with the warranty in Condition 9.2, the Supplier shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Supplier so requests, the Buyer shall at the Buyer's expense, return the Goods or the part of such Goods which is defective to the Supplier.
9.7 If the Supplier complies with Condition 9.6 it shall have no further liability for a breach of the warranty in Condition 9.2 in respect of such Goods.
9.8 Any Goods replaced will belong to the Supplier and any repaired or replacement Goods will be guaranteed on these Conditions for the unexpired portion of the 12 month period.
9.9 Where the Buyer can show that any of the Services have not been provided with reasonable skill and care, the Supplier shall re-perform those Services and provided that the Supplier complies with its obligations under this Condition 9.9 it shall, subject to Condition 9.10 have no further liability in respect of the Services.
9.10 Save for liability for death or personal injury arising from the Supplier's negligence and for liability arising under the Consumer Protection Act 1987 (which if proved is not excluded), the Supplier's option to repair, replace, re-perform or refund as aforesaid shall constitute the full extent of the Supplier's liability in respect of any loss or damage sustained by the Buyer (whether caused by any breach of the Contract or by misrepresentation (unless fraudulent) or by the negligence of the Supplier, its employees or agents or arising from any other cause whatsoever) and the Supplier shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses or other liabilities, whether direct or consequential (including loss of profits) suffered by the Buyer arising therefrom.
9.11 The cost to the Supplier of and incidental to the return by the Buyer to the Supplier of any of the Goods delivered hereunder shall, except to the extent that the Supplier has accepted responsibility hereunder, be the responsibility of the Buyer who shall indemnify the Supplier against any such costs including, but without limitation to the generality of the foregoing, costs of transport and testing or any other cost or loss to the Supplier arising therefrom.
9.12 Notwithstanding Condition 9.9, the Buyer shall, except where he is a person who suffers personal injury or death or loss or damage to property such as to give rise to a claim under the Consumer Protection Act 1987, indemnify the Supplier against all loss, damage, liability, legal fees and costs arising from any such claim made against the Supplier under the Consumer Protection Act 1987.
9.13 Save for liability for death or personal injury arising from the Supplier's negligence, liability for fraudulent misrepresentation and for liability arising under the Consumer Protection Act 1987 (which if proved is not excluded), the maximum liability of the Supplier under or in connection with the Contract shall not exceed the price of the Goods or Services.
9.14 In respect of the provision of the installation Services:
9.14.1 the Supplier is not responsible for the supply of craneage, which may be supplied by the Supplier to the Buyer at extra cost;
9.14.2 the Supplier assumes that any drilling and fixing is to be in a suitable substrate, unless it has been advised otherwise by the Buyer;
9.14.3 where pre-cast holes have not been provided, the Supplier will undertake drilling through brick, concrete and stone at extra cost to the Buyer, although the Supplier does not accept liability for any damage caused to concrete, brick, stone or any special finish;
9.14.4 the Supplier does not accept any responsibility for the suitability of the civil structure in relation to the support of the mechanical structure that is being installed;
9.14.5 the Buyer is responsible for ensuring that the watertight integrity of the civil structure is maintained and the Supplier does not accept any responsibility or liability in this regard;
9.14.6 unless advised to the contrary the Supplier assumes that all civil structures are solid and suitable for accepting mechanical/chemical anchors as necessary and the Supplier shall have no responsibility for checking or ensuring that this is the case;
9.14.7 the Supplier shall line, level and grout only, and the Buyer acknowledges that all other building work, including, but not limited to, excavating, making good foundations or special finishes is not the responsibility of the Supplier;
9.14.8 after inspection and acceptance of the Services, the Supplier does not accept any liability for damage to the installation;
9.14.9 the Supplier will not be liable for the protection of colour coated materials although it may provide protection at extra cost to the Buyer save that under no circumstances shall the Supplier be liable for any such damage caused by a third party.
10. TITLE TO GOODS
10.1 Unless the Contract otherwise stipulates, and save in respect of Goods sold outside the United Kingdom pursuant to the provisions of Condition 13, risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery of the Goods in accordance with Condition 7 or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Supplier has tendered delivery of the Goods and the Goods should be insured by the Buyer accordingly.
10.2 Notwithstanding that risk in the Goods shall pass to the Buyer in accordance with Condition 10.1, legal and beneficial ownership of the Goods shall remain with the Supplier until payment in full has been received by the Supplier:
10.2.1 for those Goods;
10.2.2 for any other goods supplied by the Supplier;
10.2.3 of any other monies due from the Buyer to the Supplier on any account.
10.3 Until property in the Goods passes to the Buyer under Condition 10.2 the Buyer shall:
10.3.1 be bailee of the Goods;
10.3.2 keep the Goods separately and readily identifiable as the property of the Supplier.
10.4 Notwithstanding Condition 10.2, the Buyer may as principal in the ordinary course of its business sell the Goods by bona fide sale at full market value.
10.5 Goods shall be deemed sold or used in the order delivered to the Buyer.
10.6 Any resale by the Buyer of Goods in which property has not passed to the Buyer shall (as between the Supplier and the Buyer only) be treated as if made by the Buyer as agent for the Supplier.
10.7 If Goods in which property has not passed to the Buyer are mixed with or incorporated into other goods the property in those other goods shall be held on trust by the Buyer for the Supplier to the full extent of the sums recoverable by the Supplier under Condition 10.2.
10.8 The proceeds of sale of any Goods and any other goods referred to in Condition 10.7 shall be held by the Buyer in trust for the Supplier to the extent of all sums recoverable by the Supplier under Condition 10.2.
10.9 The Buyer shall keep any proceeds of sale as referred to in Condition 10.8 in a separate account but in any event the Supplier shall have the right to trace such proceeds.
10.10 The Buyer assigns to the Supplier all rights and claims the Buyer may have against its own customers and others in respect of the Goods specified in Condition 10.6, goods specified in Condition 10.7 and proceeds of sale specified in Condition 10.8.
10.11 At any time before property in the Goods passes to the Buyer (whether or not any payment to the Supplier is then overdue or the Buyer is otherwise in breach of any obligation to the Supplier), the Supplier may (without prejudice to any other of its rights):
10.11.1 retake possession of all or any part of the Goods and enter any premises for that purpose (or authorise others to do so) which the Buyer hereby authorises;
10.11.2 require delivery up to it of all or any part of the Goods;
10.11.3 terminate the Buyer's authority to resell or use the Goods forthwith by written notice to the Buyer which authority shal automatically terminate (without notice) upon any insolvency of the Buyer or it going into liquidation (as defined in the Insolvency Act 1986) or it having a receiver appointed or calling a meeting of its creditors or any execution or distress being levied on Goods in its possession.
10.12 The Supplier may at any time appropriate to such indebtedness as it thinks fit sums received from the Buyer notwithstanding any purported appropriation by the Buyer.
11.1 The Supplier may at any time and in its absolute discretion request, either orally or in writing, the recall of any Goods supplied to the Buyer ("Recall"). Where such a request is made orally, it shall be confirmed by the Supplier in writing.
11.2 The reasonable cost of collection of any Goods subject to Recall shall be borne by the Supplier and the Buyer shall render all reasonable assistance in the arrangements for collection and return of such Goods.
11.3 If the Goods cannot be replaced within a reasonable period, the Supplier shall issue to the Buyer a credit noe for the price then current of the Goods subject to Recall.
12.1 The Supplier may, without prejudice to its rights and remedies under these Conditions, stop all Goods in transit and suspen d further deliveries and/or suspend performance of the Services and/or by notice to the Buyer may terminate the Contract immediately if:
12.1.1 the Buyer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction);
12.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the proper