Terms and Conditions
Burnett & Hillman
STANDARD TERMS OF SALE
THESE TERMS LIMIT, AND IN SOME CASES EXCLUDE ALTOGETHER, THE SUPPLIER’S OBLIGATIONS AND LIABILITY TO THE CUSTOMER.
- In these terms the following words have the following meanings:-
“contract” means the agreement between the supplier and the customer for the supply of the relevant
goods as the terms set out hereon, together with the quotations for the goods and
any conditions of order issued by the supplier to the customer.
“days” means clear days
“defect in the goods” includes any defects in the quality of the goods, any deviation of the goods from any
description of the goods or from any relevant sample, and any defect in the title to the
goods passed to the customer.
“delivery date” in relation to any goods means the date (if any) agreed for the delivery of those goods
“goods” means any items which the supplier supplies or is to supply to the customer
(including any of them and any part of them)
“including” indicates particular examples only, and no such references are intended to be
exhaustive or to limit in any way whatsoever the interpretation of any preceding words
“shall” denotes an obligation of the relevant party
“supplier” means B.J.Burnett and R.A.Hillman (trading as Burnett & Hillman) of Havyat Road,
Wrington, Bristol BS40 5AE.
“supplier’s fault” means fault for which the supplier is liable (or would be liable but for the contract),
including such fault of the supplier’s agents, representatives, contractors and employees.
“supplier’s negligence” means negligence for which the supplier is liable (or would be liable but for the contract),
including such negligence of the supplier’s agents, representatives, contractors and
The headings in these terms are for convenience only and are not to affect their interpretation.
Terms of Agreement
- Any quotation is only valid for a period of 30 days from its date or (if earlier) until the supplier withdraws it, and is given on the basis that no contract will come into existence until the supplier confirms to the customer its acceptance of the order together with an order number.
- The contract will be on these terms and those terms (if any) of the relevant quotation to the exclusion of all other terms. Acceptance of delivery of the goods will be deemed to be conclusive evidence of the customer’s acceptance of these terms. No terms endorsed upon, delivered with, or contained in any customer’s document (including its purchase orders and specifications) will form part of the contract merely as a result of a reference to such document in the contract.
- Representations about the goods and purported additions or variations to these terms will not have any effect unless in writing and signed by a director of the supplier.
- The customer shall ensure that the terms of its order and any applicable specification are complete and accurate.
- No order which the supplier has accepted may be cancelled by the customer less than seven clear days before the delivery date without the express written agreement of the supplier. The customer shall indemnify the supplier against all losses (including loss of profit), costs, damages, charges and expenses suffered or incurred by the supplier as a result of any cancellation (whether or not agreed with the supplier).
- In the event of any conflict between the provision of these Terms of Sale and those contained within any conditions of order issued by the supplier in conjunction with these terms of sale the terms of the latter shall prevail.
- The price for the goods is the price set out in the supplier’s published price list current at the date of order or, if different, the price specified in the estimate or quotation which forms the basis of the contract.
- The customer shall, when it is due to pay the price for the goods, pay in addition the supplier’s charges for transport (unless the customer uses its own carrier), packaging and insurance and value added tax or any other applicable tax or duty.
- The supplier may invoice the customer for the goods and other charges at any time after delivery, and the customer shall pay in full within 60 days from end of current month of the date of delivery of the goods. The supplier is entitled to invoice the customer for each separate instalment. Time for payment is of the essence of the contract.
- All payments payable to the supplier under the contract will become due immediately upon termination of the contract despite any other provision.
- Payment will be deemed not to have been received until the supplier has received cleared funds.
- The customer shall make all payments due under the contract without any deduction, whether by way of abatement, set-off, counterclaim or otherwise, even if as a result of the supplier’s negligence, except to the extent the customer has a valid court order requiring an amount equal to such deduction to be paid by the supplier to the customer.
- The supplier may appropriate any payment made by the customer to the supplier to such of the goods as the supplier thinks fit despite any purported appropriation by the customer.
- The supplier may (without prejudice to its other rights and remedies) charge the customer interest, such interest accruing daily both before and after judgment on the amount unpaid at the annual rate of 4% above National Westminster Bank PLC’s base rate from time to time until payment is received in full.
- The description of the goods (if any) is as set out in the supplier’s quotation, but is always subject to any technical and use limitations and restrictions specified in the supplier’s catalogue or data sheets. All other descriptive matter published or issued by the supplier is for the sole purpose of giving an approximate idea of the goods described there and does not form part of the contract.
- The supplier may make any changes to the specification, design, materials or finish of the goods which are required to conform with any applicable safety or legal requirements without being in breach of contract or incurring any liability to the customer.
- Any variation of the goods from any specification, design, materials or finish which does not adversely affect the suitability of the goods for the particular purpose for which they are supplied to the customer will not constitute a breach of contract or impose any liability upon the supplier.
- The bulk of the goods will correspond in quality with any relevant sample but except to the extent that the particular goods concerned are not of satisfactory quality the supplier will not be liable to the customer in respect of any deviation in quality unless more than 2 % of the goods does not so correspond. The customer will be deemed to have had reasonable opportunity to compare the bulk of the goods with the relevant sample and to have had notice of any variation of the goods from the sample four days after delivery, and to have accepted any variants unless the customer expressly rejects the variants by notice in writing within that period.
- Subject to the other provisions of these terms, upon delivery the goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1994.
- Delivery dates are approximate only and are not and may not be made of the essence by notice. If no dates are agreed to, delivery will be within a reasonable time.
- If the supplier indicates that a payment on account is required in respect of any particular goods, or goods generally, the supplier is not obliged to deliver any such goods until it has received such payment as cleared funds.
- Delivery of the goods will occur when they are available for collection from the supplier’s premises (or any other premises agreed with the customer) and the supplier has notified the customer of this.
- The supplier may deliver the goods by instalments. Neither the failure of the supplier to deliver any one or more (but not all) instalments in accordance with the contract, nor any claim by the customer in respect of any one or more (but not all) instalments, will entitle the customer to treat the contract as repudiated.
- The failure by the customer to pay for any one or more instalments in accordance with the contract will entitle the supplier (without prejudice to its other rights and remedies) to suspend further deliveries of the goods under the contract or any other agreement between the supplier and the customer pending payment by the customer, and/or to treat the contract as repudiated by the customer.
- Unless agreed otherwise in relation to specific goods, the customer shall take delivery of the goods within 7 days of the supplier giving it notice that they are ready.
- The customer shall accept delivery of the goods and pay for them in full unless the delay in delivery exceeds 30 days.
- Any particular carrier used at the request of the customer will be deemed to be the customer’s agent except for the purposes of sections 44, 45 and 46 of the Sale of Goods Act 1979, whoever , instructs or pays the carrier.
- The quantity of any consignment of goods as recorded in any delivery note signed by or on behalf of the customer will be conclusive evidence of the quantity delivered unless the customer can provide conclusive evidence proving the contrary.
- Subject to the other provisions of these terms, the supplier will not be liable for any loss (including loss of profit), costs, damages, charges or expenses arising directly or indirectly from any delay in the delivery of the goods even if the delay is caused by the supplier’s negligence. Unless such delay is caused by the supplier’s negligence and exceeds 30 days, the customer will not be entitled to, and shall not, terminate or rescind the contract. If the delay exceeds 30 days, and is caused by the supplier’s fault, the customer may cancel the contract to the extent it relates to the goods which were the subject of such delay, without further liability for such goods.
- If other than because of the supplier’s fault the customer fails to take delivery of any of the goods when they are ready for delivery, or to provide any instructions, documents, licences or authorisations required to enable the goods to be delivered on time, then: the goods will be deemed to have been delivered; risk in the goods will pass to the customer (including risk of loss or damage caused by the supplier’s negligence); the supplier may (without prejudice to its other rights) sell any of the goods at the best price reasonably obtainable in the circumstances and charge the customer for any shortfall below the contract price; and the supplier may store or arrange for the storage of the goods until actual delivery or sale and charge the customer for all related costs and expenses (including insurance).
- The supplier will not be liable for any non-delivery of any goods (even if caused by the supplier’s negligence) unless written notice is given to the supplier and any carrier used within three days of the date when the goods would in the ordinary course of events have been received by the customer. A note of qualified acceptance on a carrier’s delivery note will not be written notice to either the carrier or the supplier for the purpose of these terms.
- Any liability of the supplier for the non-delivery of any goods is limited to supplying the goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such goods.
- Risk of damage to or loss of particular goods will pass to the customer upon delivery of those goods.
- Ownership of the goods will not pass to the customer until the supplier has received in full in cash or cleared funds all sums due to it in respect of the goods and all other sums which are or which become due to the supplier from the customer on any account, whether under the same contract or otherwise.
- The supplier is entitled to recover payment for the goods notwithstanding that ownership of any of the goods has not passed from the supplier.
- Until ownership of the goods has passed to the customer, the customer shall:
- 37.1 hold the goods on a fiduciary basis as the supplier’s bailee;
- 37.2 store the goods (at no cost to the supplier) separately from all other goods of the customer or any third party in such a way that they remain readily identifiable as the supplier’s property;
- 37.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the goods;
- 37.4 maintain the goods in satisfactory condition and keep them insured on behalf of the supplier and to the reasonable satisfaction of the supplier (but at the customer’s expense) for their full price against all risks to and produce to the supplier on request the policy of insurance, the latest receipt evidencing payment of the premium, and any relevant schedule; and
- 37.5 hold the proceeds of the insurance referred to in clause 37.4 on trust for the supplier and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
- The customer shall not resell the goods before ownership has passed to it other than on the following conditions: any sale must be effected in the ordinary course of the customer’s business at full market value and the customer shall account to the supplier accordingly; and any such sale must be a sale of the supplier’s property on the customer’s own behalf and the customer shall deal as principal when making such a sale.
- Where the supplier is unable to determine whether any items are the goods, the customer will be deemed to have sold all items of the kind sold by the supplier to the customer in the order in which they were invoiced to the customer.
- The customer grants to the supplier and 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 the customer’s right to possession has terminated, to recover them.
- Any goods replaced by the supplier will belong to the supplier.
- It will be a term of such agreement that the supplier will issue a credit note, not a cash refund, equal in value to 75% of the contract price of those goods.
General Exclusions and Limitations of Liability
- Except for the liability of the supplier for fraud, for death or personal injury resulting from the supplier’s negligence, under section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982, or under Part 1 of the Consumer Protection Act 1987, the express provisions of these terms and the terms (if any) of the relevant quotation set out the entire liability of the supplier (including any liability for its employees, agents and sub-contractors) to the customer in respect of:
- 43.1 any breach of the contract (including the supplier’s negligence and the consequences of it); and
- 43.2 any representation, statement or tortious act or omission (including any of these due to supplier’s negligence) arising under or in connection with the contract
- All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 2 of the Supply of Goods and Services Act 1982 or section 12 of the Sale of Goods Act 1979) are excluded from the contract. Furthermore, it is not a warranty, condition or other term of the contract that either the goods or any use or dealings in them will not infringe any intellectual or industrial property right of any third party.
- Subject to clauses 43 and 44:
- 45.1 the supplier’s total liability in contract, tort, misrepresentation or otherwise arising in connection with the contract, even if due to the supplier’s negligence, is limited to the price of the goods covered by the contract; and
- 45.2 the supplier will not be liable to the customer by reason of any representation or any implied warranty condition or other term or any duty at law or under the express terms of the contract for any of the following which arise in connection with the contract, even if these are caused by the supplier’s negligence: indirect or consequential loss or damage, any loss of profit, any loss of business, any depletion of goodwill, or any costs or expenses whatsoever.
- The customer shall indemnify the supplier against all liability, actions, proceedings, costs, claims, damages or demands which are in any way connected with the contract or its performance or non-performance and are brought or threatened against the supplier by any third party, except to the extent the supplier is liable to the customer under these terms.
- The supplier will not be liable for any defect in the goods caused by any third party (including any resulting from the supplier’s negligence or the negligence of any contractor to the supplier) which the supplier does not discover, and could not have discovered upon a reasonable inspection of the goods, before delivery to the customer unless the defect is the inevitable result of negligent instructions issued by the supplier.
- The supplier will not be liable for any defect in the goods unless the customer complies fully with this clause 48. The customer must give written notice of the defect to the supplier (and to the carrier if the defect appears likely to be a result of damage in transit) within three days of: (where the defect would be reasonably apparent to the customer upon a reasonable inspection) the date of delivery; or (where the defect would not be reasonably apparent to the customer upon a reasonable inspection) the date when the customer knew or ought reasonably to have known of the defect. The customer shall give the supplier a reasonable opportunity to examine such goods and if asked to do so by the supplier the customer shall return such goods to the supplier ‘s place of business for the examination to take place there.
- The supplier shall not be liable for any defect in the goods if:
- 49.1 the defect arises because the customer failed to follow the supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the goods or (if there are none) good trade practice; or
- 49.2 the customer alters or repairs such goods without the written consent of the supplier; or
- 49.3 the defect arises from the supplier adhering to any drawing, design, specification or sample supplied or approved by the customer.
- If the customer makes a valid claim against the supplier based on a defect in the quality of the goods, the supplier may at its option repair or replace such goods (or the defective part) or refund the price of such goods pro-rata at the contract rate, following any of which it shall have no further liability in respect thereof.
- The contract will terminate immediately upon the happening of any one or more of the following events: the customer (being an individual) has a bankruptcy order made against him or any of his partners, or he or any of his partners makes an arrangement or composition with his or their creditors or otherwise take the benefit of any legislation for the time being in force for the relief of insolvent debtors; or the customer (being a body corporate) convenes a formal or informal meeting of its creditors, or enters into voluntary or compulsory liquidation (except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation), or has a receiver, manager, administrator or administrative receiver appointed in respect of its undertaking or any part thereof, or a resolution is passed or a petition is presented to any court for the winding-up of the customer or for the granting of an administration order in respect of the customer; or (whether the customer is an individual or a company) any proceedings are commenced relating to the insolvency or possible insolvency of the customer.
- The contract will terminate immediately upon service of written notice of termination by the supplier on the customer following the happening of any one or more of the following: the customer suffers or allows any execution (whether legal or equitable) to be levied on its property or obtained against it; the customer fails to observe or perform any of its obligations or duties under the contract or any other contract between the supplier and the customer; the customer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; the customer ceases to trade.
- The supplier’s rights (but not the customer’s rights) described in clauses 34 to 41 will continue beyond the discharge of the primary obligations of the customer and the supplier under the contract consequent upon its termination.
- The termination of the contract howsoever arising shall be without prejudice to the rights and duties of either the customer or the supplier accrued prior to termination.
- The supplier will not be liable to the customer in any manner, nor be in breach of the contract, because of any delay in performing or any failure to perform any of the supplier’s obligations under the contract if the delay or failure is due to any cause beyond the supplier’s reasonable control, and in such circumstances the contract will continue unless and until terminated by the supplier.
- Without prejudice to the generality of clause 55 the following are or are deemed to be causes beyond the supplier’s reasonable control: governmental actions, war or threat of war, national emergency, riot, civil disturbance, sabotage and requisition; Act of God, fire, explosion, flood, epidemic and accident; import or export regulations and embargoes; labour disputes not including disputes involving the supplier’s work-force; an inability to obtain, or delay in obtaining, supplies at the usual prices of adequate or suitable material, fuel, parts, machinery or labour.
- Time for performance of all obligations of the customer is of the essence.
- Each right or remedy of the supplier under the contract is without prejudice to any other right or remedy of the supplier whether under the contract or not.
- To be effective, communications to the supplier concerning orders, the contract or its performance or non-performance must be as follows: to its offices at Havyatt Road, Wrington, North Somerset, BS40 5NL (or such changed address as the supplier may notify to the customer); or to fax number (01934) 862616 or to telephone number (01934) 862596.
- Communications will be deemed to have been received as follows: if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting; if delivered by hand, on the day of delivery; if sent by facsimile transmission on a working day prior to 4:00pm, at the time of transmission, and otherwise on the next working day.
- Any provision of the contract which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) will to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the other provisions of the contract and the remainder of such provision will not be affected.
- Failure by the supplier to enforce wholly or partially any provision of the contract will not be construed as a waiver of any of its rights under the contract.
- The supplier may assign, license or delegate all or any or any parts of its rights and obligations under the contract. The contract is personal to the customer, who may not assign, license or delegate all or any or any parts of its rights or obligations under the contract without the supplier’s prior written consent.
- The formation and all other aspects of the contract are governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.