1. DEFINITIONS
1.1. "Supplier" means Whiteside Chimneys Limited (company number 064201365) whose registered office is at Park House 91 Garstang Road Preston Lancashire PR1 1LD
1.2. "Customer" means any person, firm, company or unincorporated association which orders, buys or buys Goods form the Supplier.
1.3. "Contract" means an individual legally binding contract between Supplier and Customer created when an Order placed by Customer is accepted by Supplier according to these Conditions.
1.4. "Goods" means the goods and/or, services which are the subject of the Contract and any installment thereof.
1.5. "Invoice" means the invoice given or dispatched to Customer detailing the Goods and the Price.
1.6. "Order" means any order placed by Customer for the supply of Goods by Supplier to Customer.
1.7. "Price" means the total price to be paid by Customer to Supplier for the Goods as specified on the Invoice which shall include VAT where applicable and/or other taxes, duties and appropriate other charges.
1.8. “Conditions” means the terms and conditions of sale and supply as set out herein and any special terms and conditions agreed in writing between the Supplier and the Customer
2. ACCEPTANCE OF ORDERS
2.1 Any quotation or price relating to Goods supplied by the Supplier and any catalogue, or other advertisement of such Goods shall not constitute an offer capable of acceptance by the Customer but an invitation to place an Order. Orders shall be accepted entirely at the discretion of the Supplier and, if accepted, are governed by these Conditions.
2.2 These Conditions shall override any contrary, different or additional terms or conditions contained or referred to in the Customer’s order or in any other correspondence or documents from that Customer and no addition, alteration or substitution of these Conditions will bind the Supplier or form part of any Contract unless expressly accepted in writing by a person authorised to sign on the Supplier’s behalf.
2.3 An Order shall be deemed to have been accepted by the Supplier on the earliest of:
2.3.1 the acceptance by the Supplier of payment in cleared funds for the Goods;
2.3.2 dispatch to the Customer of a note advising that the Contract has been recorded and will be fulfilled once the Goods to which the advice note relates are available;
2.3.3 delivery of the Goods to the Customer or the Customer’s nominee; or
2.3.4 in the case of Goods which are services, commencement by the Supplier or it’s subcontractor of supply of the said service or Supplier having provided Customer with access to the said service.
3. DELIVERY OF GOODS
3.1 Unless collected by the Customer from the Supplier’s premises, the Supplier shall effect delivery of Goods through its distributor at the Customer’s expense.
3.2 Delivery to the Customer shall be deemed to have taken place when the Goods are placed with the Customer or the Customer’s nominee at the address specified by the Customer.
3.3 Risk in the Goods shall pass to the Customer on delivery.
3.4 Any time or date for delivery given by the Supplier is given in good faith but is an estimate only and time of delivery shall not be made of the essence by notice.
3.5 Where Goods are collected from the Supplier’s premises Delivery to the Customer shall be deemed to have taken place
4. PROPERTY IN THE GOODS
4.1 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, property in the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the Price and of all other sums which may be due by the Customer to the Supplier at the time the Price is so paid in full.
4.2 Until property in the Goods passes, the Customer shall keep the Goods free from any lien, charge or encumbrance and the Supplier may at any time require the Goods to be returned to it by the Customer and if such requirement is not met within three days the Supplier may retake possession of the Goods and may enter any premises of Customer (including locked and steadfast premises) for that purpose. The Customer shall hold the Goods as the Supplier’s fiduciary agent and custodian and shall keep them separate from its property and from that of third parties and properly stored, protected and insured and identified as the property of the Supplier.
4.3 If the Customer shall sell or otherwise dispose of or process the Goods (or any part thereof) it shall receive and hold as trustee for the Supplier the proceeds of such sale, disposal or process or other monies derived from or representing the Goods (or any part thereof) (including insurance proceeds) and shall keep such proceeds or other monies separate from any monies or property of the Customer and/or third parties, and shall as soon as possible after receiving the same pay such monies to the Supplier or into a separate account in trust for the Supplier.
4.4 The Supplier shall be entitled to sue for the Price once payment is due notwithstanding that property in the Goods has not passed to the Customer.
5. PRICE AND PAYMENT
5.1 Price shall be paid in full in cash or cleared funds on or before the date shown on the Invoice as the due date for payment and if none the last day of the month following the month in which delivery of the Goods took place ("Due Date") (unless otherwise agreed in writing). Time for payment shall be of the essence.
5.2 Rates, prices and discounts published in catalogues, lists, mailshots, websites, advertisements, and other documents issued by the Supplier are subject to variation at any time without prior notice.
5.4 The Invoice shall be given or dispatched by the Supplier to the Customer on the date of delivery or as soon as reasonably practicable thereafter provided that the Supplier reserves the right to despatch further Invoices to the Customer in respect of increased or other charges payable under these Conditions and not ascertainable at the time of despatch of the original Invoice.
5.5 If the Price is not paid in full by the Due Date the Supplier may :-
5.5.1 cancel or suspend any further deliveries to the Customer (under any Contract);
5.5.2 appropriate any payment made by the Customer to such of the Goods under this or any other Contract) as the Supplier may think fit (notwithstanding any purported appropriation by the Customer); and
5.5.3 charge the Customer interest (both before and after any judgment) on the outstanding amount at a rate of 5% per annum above the base rate of Barclays Bank plc from time to time, until payment is made in full (a part of a month being treated as a full month for the purposes of calculating interest).
5.7 The Customer shall reimburse the Supplier (on a full indemnity basis) all costs and expenses incurred by the Supplier in connection with the recovery of any money due to the Supplier under the Contract.
5.8 Payment made by the Customer to the Supplier shall be applied by the Supplier to Invoices, and to Goods listed in Invoices, in such order or manner as the Supplier shall, at its entire discretion, think fit.
5.9. Except with the express agreement in writing of the Supplier, no deduction shall be made by the Customer from any payment for Goods for or on account of any matter or thing whatsoever including, but not limited to any set-off, compensation, counter-claim or present or future taxes.
6. LIABILITY
6.1 All terms conditions warranties and representations (whether implied or made expressly) whether by the Supplier its servants or agents or otherwise relating to the quality and/or fitness for purpose of the Goods or any of the Goods are excluded to the fullest extent permitted by law.
6.2 The Goods will have the benefit of any manufacturer’s guarantee for new Goods sold
6.3 The Customer shall comply with all directions with regard to the installation and use of the Goods given by the manufacturer and follow any recommendations by the manufacturer in it’s literature
7. FORCE MAJEURE
7.1 The Supplier shall not be responsible for any delay or failure to fulfil any of its obligations under the Contract nor be liable for any loss or damage suffered or incurred by the Customer by reason of any delay in delivery of the Goods or any part thereof caused directly or indirectly by any of act of God, war, government or parliamentary restriction, import or export regulation, strike, lockout, trade dispute, fire, theft, flooding, breakdown of plant or premises, late or non-delivery of any supplies or any other cause whatsoever beyond the control of the Supplier.
8. TERMINATION
8.1 In the event of the Customer committing any breach of any term or provision of the Contract (including, for the avoidance of doubt, these Conditions), going into liquidation, having a Receiver, Administrator, Judicial Factor or other similar officer appointed over the whole or any part of its assets, becoming bankrupt or apparently insolvent or granting any trust deed or entering into any composition or similar arrangement with its creditors, or if any circumstances arise which, in the sole opinion of the Supplier, render any of the foregoing likely to occur then the Supplier shall be entitled, without notice and without any liability whatsoever, to terminate the Contract forthwith and to enter the Customer’s premises for the protection, removal, realisation and disposal of any of the Goods in which property shall not have passed to the Customer in accordance with these Conditions. The Supplier shall also be entitled to cancel all Contracts or any part thereof remaining unfulfilled between the Supplier and the Customer and to sell to any other party or otherwise dispose of and deal with the Goods.
8.2 Termination of the Contract shall not discharge any pre-existing liability of the Customer to the Supplier and on such termination the Supplier shall be entitled to recover from the Customer such loss or damage as the Supplier has suffered by reason of such termination.
9. GENERAL
9.1 No failure of or delay by the Supplier to exercise any right, power, remedy or privilege shall operate as a waiver of the same.
9.2 If any provision of these Conditions shall be held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form part of these Conditions but the validity and enforceability of the remainder of these Conditions shall not be affected.
9.3 Any notices or other communications required or permitted to be given by the Supplier to the Customer, or vice versa, under these Conditions shall be in writing and sent, in the case of notices to the Supplier, to the address given in these Conditions (or such other address as may be intimated to Customer from time to time) and, in the case of notices to the Customers, to the Customer’s last known address. Notices and other communications shall be sent by first class mail, facsimile transmission or delivered by hand and shall be deemed to have been received, in the case of first class mail, 72 hours after posting, by facsimile transmission, on the completion of the transmission and by delivery by hand, at the time of delivery.
9.4 The Supplier shall be entitled, in its entire discretion, to alter these Conditions or any of them at any time or from time to time whether by way of variation and/or substitution and/or deletion of the subsisting provisions and/or adding new provisions and these Conditions as so altered shall apply to Contracts whether current at the time or entered into hereafter, provided always that in the case of each Contract then prior notice in writing shall be given by the Supplier to the Customer setting out the amended Conditions and the effective date thereof (such notice may be posted on Supplier’s website)
9.5 The Supplier may without the prior written consent of the Customer assign any benefit or transfer, delegate or sub-contract any of its duties and obligations under these Conditions.
9.6 In circumstances where the Supplier has not fitted the Goods and has agreed at its own discretion to replace Goods deemed to be faulty by the Supplier the Supplier will not be responsible for the costs of the installation of the replacement Goods which shall be payable by the Customer.
10. JURISDICTION AND GOVERNING LAW
10.1 This Contract shall be governed in all respects by the law of England and Wales and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the English Courts save that, in the case of Contracts with Customers to whom Goods are delivered or services provided in:
10.1.1 Scotland, this Contract shall be governed in all respects by the law of Scotland and the parties hereby irrevocably agree to submit to the non-exclusive jurisdiction of the Scottish Courts; or
10.1.2 Ireland, this Contract shall be governed in all respects by the law of the Republic of Ireland and the parties hereby irrevocably agree to submit to the non-exclusive jurisdiction of the Irish Courts.