Warrior Winches is a trading brand of Winch Solutions Ltd
TERMS AND CONDITIONS OF BUSINESS
1 Definitions and Interpretation
In these conditions, unless the context requires otherwise:
1.1 ‘Buyer’ means the person who buys or agrees to buy the goods from the Seller;
1.2 ‘Conditions’ means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
1.3 ‘Consumer’ has the same meaning as within the Unfair Contract Terms Act 1977 Section 12 as amended and/or the Unfair Terms in Consumer Contracts Regulations 1999 Regulation 3(1);
1.4 ‘Delivery Date’ means the date specified by the Seller when the goods are to be delivered;
1.5 ‘Goods’ means the articles which the Buyer agrees to buy from the Seller;
1.6 ‘Price’ means the price for the Goods excluding carriage, packing, insurance and VAT; and
1.7 ‘Seller’ means Winch Solutions Limited (Company Registration Number 06009924) of Unit 16 Winchester Road, Haydock Industrial Estate, Haydock, St. Helens, Merseyside, WA11 9XQ.
1.8 All headings are for ease of reference only and shall not affect the construction of this contract.
1.9 Any provision of this contract which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision of this contract.
1.10 No waiver or forbearance by the Seller (whether express or implied) in enforcing any of its rights under this contract shall prejudice its right to do so in the future.
2 Conditions applicable
2.1 These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document.
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
2.3 Placing an order with the Supplier shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
[2.5 The Buyer’s order for Goods will only be accepted by the Seller where such order has been placed using the [Seller’s Order Form]]
3 Price and payment
3.1 The Price shall be the price stipulated in the Seller’s published price list current at the date of the Buyer’s order. The Price is exclusive of VAT which shall be due at the rate ruling on the date of the Seller’s invoice.
3.2 Payment of the Price and VAT shall be due within 30 days of the date of the invoice. Time for payment shall be of the essence save where the Buyer is dealing as a Consumer in which case payment of the Price and VAT shall be due on the day that the Buyer places his order.
3.3 Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 2% above the base rate of Barclays Bank plc from time to time in force and shall accrue at such a rate after as well as before any judgment.
3.4 Without prejudice to clause 3.1 hereof, the Seller reserves the right to offer the Buyer a quotation. Where the Seller elects to do so (such election to be at the Seller’s absolute discretion) it shall be available for acceptance by the Buyer for a period of 30 days from the date thereof. If the Buyer does not accept the quotation within this period, the Seller shall be entitled to amend it or rescind it altogether.
3.5 The Seller may be giving notice to the Buyer at any time up to 14 days before delivery increase the Price of the Goods to reflect any increase in the cost to the Seller which is due to factors occurring after the making of the contract of sale which are beyond the reasonable control of the Seller (including, without limitation, foreign exchange fluctuations, taxes and duties and the cost of labour, materials and other manufacturing costs) provided that the Buyer may cancel this contract within 7 days of any such notice from the Seller.
4 The Goods
4.1 The quantity and description (including specification) of the Goods shall be the same as set out in the Seller’s promotional literature.
4.2 The Seller may from time to time make changes in the specification of the Goods which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the Goods.
5 Warranties and liability
5.1 The Seller warrants that the Goods supplied will at the time of delivery correspond to the description given by the Seller.
5.2 Except where the Buyer is dealing as a Consumer:
5.2.1 all other warranties, conditions or terms whether implied or made expressly and whether by the Seller, its agents or otherwise, relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are excluded to the fullest extent permitted by law;
5.2.2 in the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
6 Delivery of the Goods
6.1 The Goods shall be marked in accordance with the Buyer’s instructions and shall be properly packed and secured for delivery to the Buyer in an undamaged condition.
6.2 On the date of the Buyer’s order, the Buyer shall confirm to the Seller the address to which the Goods are to be delivered.
6.3 Subject to clause 6.2, the Seller shall arrange for carriage of the Goods to the Buyer’s address. The costs of carriage and any insurance which the Buyer reasonably directs the Seller to incur shall be reimbursed by the Buyer without any set-off or other withholding whatever and shall be due on the date for payment of the Price.
6.4 The carrier shall be deemed to be the Buyer’s agent and the Seller shall not be liable for any loss or damage whatever due to any damage caused to the Goods in transit and/or any failure by the agent to deliver the Goods (or any of them) promptly or at all.
6.5 The Seller shall use its best endeavours to procure delivery of the Goods to the address nominated by the Buyer (pursuant to clause 6.2) on the Delivery Date.
6.6 Where the Seller gives a time for delivery, this shall not be the essence of this contract.
6.7 The Goods may be delivered in advance of the Delivery Date upon the giving of reasonable notice to the Buyer. The Buyer shall make all arrangements to take delivery of the Goods whenever they are tendered for delivery.
6.8 The Buyer shall notify the Seller of any non-delivery within 3 days of the Delivery Date. Notwithstanding the receipt by the Seller of any such notice a clear signature on a carrier’s delivery advice sheet shall be deemed to signify the Buyer’s receipt of the Goods (as indicated thereon).
7 Acceptance of the Goods
7.1 The Buyer shall inspect the Goods on delivery and shall within 24 hours of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with description or sample. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery and before any use is made of them. If the Buyer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the contract and free from any defect or damage which would be apparent on a reasonable examination of the Goods and the Buyer shall be deemed to have accepted the Goods.
7.2 After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the contract.
7.3 No Goods delivered to the Buyer which are in accordance with the contract will be accepted for return without the prior written approval of the Seller on terms to be determined at the absolute discretion of the Seller.
7.4 If the Seller agrees to accept any such Goods for return the Buyer shall be liable to pay a handling charge of 10% of the invoice price. Such Goods must be returned by the Buyer carriage-paid to the Seller in their original shipping carton.
7.5 Goods returned without the prior written approval of the Seller may at the Seller’s absolute discretion be returned to the Buyer or stored at the Buyer’s cost without prejudice to any rights or remedies the Seller may have.
8 Title and risk
8.1 Risk shall pass from the Seller to the Buyer on delivery of the Goods.
8.2 Notwithstanding delivery having been made, property in the Goods shall not pass from the Seller until:
8.2.1 the Buyer shall have paid the Price plus VAT in full; and
8.2.2 no other sums whatever shall be due from the Buyer to the Seller.
8.3 Until property in the Goods passes to the Buyer in accordance with clause 8.2 the Buyer shall hold the Goods on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Seller’s property.
8.4 Notwithstanding that the Goods remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.
8.5 The Seller shall be entitled to recover the Price (plus VAT) notwithstanding that property in any of the Goods has not passed from the Seller.
8.6 Until such time as property in the Goods passes from the Seller the Buyer shall upon request deliver up to the Seller such of the Goods as have not ceased to be in existence or resold. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under clause 8.4 shall cease.
8.7 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
8.8 The Buyer shall insure and keep insured the Goods to the full Price against ‘all risks’ to the reasonable satisfaction of the Seller until the date that property in the Goods passes from the Seller, and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
9. Intellectual Property
The specifications and designs of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller. Where any designs or specifications have been supplied by the Buyer for manufacture by the Seller or to the order of the Buyer then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
10 Remedies of Buyer
10.1 Except where the Buyer is dealing as a Consumer:
10.1.1 the Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of this contract and the remedies of the Buyer shall be limited to damages;
10.1.2 under no circumstances shall the liability of the Seller exceed the Price of the Goods.
10.1.3 where the Buyer accepts or has been deemed to have accepted any Goods then the Seller shall have no liability whatever to the Buyer in respect of those Goods.
11 Miscellaneous
11.1 Notices
11.1.1 Any notice under or in connection with this contract of sale shall be in writing and shall be served by first class post or by hand on the party or sent by recorded delivery or e-mail at or to the address of the party set out in the contract or at or to such other address as may be subsequently notified by one party to the other.
11.1.2 In the absence of evidence of earlier receipt any notice shall be deemed to be duly served:
11.1.2.1 if delivered personally when left at the address stipulated within the contract;
11.1.2.2 if sent by recorded delivery 3 days after posting; and
11.1.2.3 if sent by e-mail, when received.
11.2 Insolvency or other default of buyer
If the Buyer fails to make payment for the Goods in accordance with the terms hereof or commits any other breach of these Conditions or if any distress or execution shall be levied upon any of the Buyer’s goods or if the Buyer offers to make any arrangement with its creditors or if any bankruptcy petition is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver, administrator, administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign law all sums outstanding in respect of the Goods shall become payable immediately. The Seller may in its absolute discretion and without prejudice to any other rights which it may have:
11.2.1 suspend all future deliveries of Goods to the Buyer and/or terminate the contract without liability upon its part; and/or
11.2.2 exercise any of its rights pursuant to clause 8.
11.3 Force Majeure
11.3.1 Save for the Buyer’s obligation of payment of the Price pursuant to clause 3, neither party shall be liable for any default due to any act of God, war, civil disturbance, malicious damage, strike, lockout, industrial action, fire, flood, drought, extreme weather conditions, compliance with any law or governmental order, rule, regulation, direction or other circumstance beyond the reasonable control of either party (‘Force Majeure Event’).
11.3.2 Each party shall give notice forthwith to the other upon becoming aware of a Force Majeure Event, the notice to specify details of the circumstances giving rise to the Force Majeure Event.
11.4 Seller’s Right of Cancellation
The Seller may cancel the contract at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
11.5 Consumer Buyer’s Right of Cancellation
11.5.1 Where the Buyer is dealing as a Consumer it may, within the period of 7 days from the day after the day on which it received the Goods, give to the Seller a notice of cancellation which shall operate to cancel the contract.
11.5.2 Any notice of cancellation must be in writing and must clearly indicate the intention of the Buyer to cancel the contract.
11.5.3 A notice of cancellation is to be treated as having been properly given if the Buyer:
11.5.3.1 leaves it at the Supplier’s address (in which case it is to be taken to have been given on the day on which it was left);
11.5.3.2 sends it by post to the Supplier’s address (in which case, it is to be taken to have been given on the day on which it was posted);
11.5.3.3 sends it by facsimile to the Seller’s business facsimile number (in which case it is to be taken to have been given on the day on which it is sent); or
11.5.3.4 sends it by electronic mail to the Supplier’s business electronic mail address (in which case it is to be taken to have been given on the day on which it is sent).
11.5.4 The Buyer will not have the right to cancel the contract by giving notice of cancellation for:
11.5.4.1 the supply of goods the price of which is dependent on fluctuations in the financial market which cannot be controlled by the Supplier;
11.5.4.2 the supply of goods made to the Buyer’s specifications or clearly personalised or which by reason of their nature cannot be returned or are liable to deteriorate or expire rapidly.
11.5.5 On the cancellation of a contract, the Supplier shall reimburse any sum paid by or on behalf of the consumer under or in relation to the contract to the person by whom it was made free of any charge, less any charges incurred by the Supplier either in retrieving the Goods from the Buyer and/or procuring the return of the goods from the Buyer.
11.5.6 The Buyer shall be at liberty to return the Goods to the Seller (at an address to be agreed with the Seller in advance of such return). Should the Buyer elect to return the Goods, the Buyer shall do so at his own expense and risk and must satisfy the Seller (if called upon to do so) of the presence of adequate insurance.
11.5.7 Where a contract is cancelled after the Buyer has acquired possession of any Goods under the contract the Buyer shall be treated as having been under a duty throughout the period prior to cancellation to retain possession of the goods and to take reasonable care of them.
11.5.8 For the avoidance of doubt, this clause 11.5 shall only be relevant to circumstances in which the Buyer is dealing as a Consumer.
11.6 Complaints
In the event that the Buyer has any complaints about the Goods, he should send them in writing to the Supplier’s address (as referred to herein).
12 Proper law of contract
This contract is subject to the law of England and Wales.
