ALL BUSINESS CONDUCTED BY GREENTEK SOLUTIONS LTD AND GROUND-GUARDS LTD
IS REGULATED BY THE FOLLOWING TERMS AND CONDITIONS
(November 2017 Edition 1.2)
1.1 In these conditions:
“Buyer” means the person firm or company entering into the Contract with the Seller.
“Goods” means the article(s) including any modification of the article(s) or any of them which the Seller is to supply in accordance with these Conditions.
“Seller” means GreenTek Solutions Ltd (CRN 08324565) whose registered office is at Rudgate, Walton, Leeds, West Yorkshire, United Kingdom, LS23 7AU, and/or Ground-Guards Ltd (CRN 08324672) whose registered office is at Rudgate, Walton, Leeds, West Yorkshire, United Kingdom, LS23 7AU (as the case may be).
“Conditions” means the standard terms and conditions of sale set out in this document and includes any special terms and conditions expressly agreed and signed in writing between the Buyer and the Seller.
“Contract” means the contract for the purchase and sale of either the Goods or the supply and acquisition of the Services or both.
“Ex Works” or “EXW” has the meaning given in The Incoterms rules (2010 edition).
“Services” means the services (if any) described in the Buyer’s order or otherwise carried out under the contract.
“Data Protection Legislation” means any and all applicable data protection legislation from time to time in force in England and Wales to include but not limited to the Data Protection Act 1998, the General Data Protection Regulation 2016/679 and any successor legislation.
“Writing” includes a facsimile transmission and comparable means of communication or a written signed document.
- Basis of the Sale
2.1 The Seller shall sell and the Buyer shall purchase either the Goods or acquire the Services or both subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions (to include, but not limited to, the Buyer’s own terms and conditions) subject to which any such order is made or purported to be made by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller. Only a duly appointed and registered director of the Seller is an authorised representative for these Conditions.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods or Services unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that he has not relied on any representation which has not been confirmed by the Seller.
2.4 Goods are not supplied on approval and Goods are not returnable without the Seller’s express approval.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price lists, acceptance of offer, invoice or other document or information issued by the Seller will be subject to correction without any liability on the part of the Seller.
- Orders and Specifications
3.1 A quotation whether oral or written is not an offer and may be withdrawn without notice. Any order by the Buyer given in respect of the quotation is an offer and is not binding on the Seller until specifically accepted by the Seller whether in writing or by delivery of the Goods or performance of the Services.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy, legibility and completeness and clarity of the terms of any order and for giving the Seller any necessary or relevant information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full and on demand against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses (including professional costs and expenses) incurred by the Seller up to date of cancellation.
3.4 The Seller 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 (or requirements of any territory to which the Goods are to be exported to) or, where the Goods are to be supplied to the Buyer’s specification, which do not materially affect their quality or performance.
3.5 The quality, quantity and description of the Goods and any specification from them will be set out in the Seller’s quotation, whether in writing or orally.
- Price of Goods
4.1 The price of the Goods and Services shall be as specified in the Sellers quotation or, where no price has been quoted (or the 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. Where the goods are supplied for export from the UK, the Seller’s published export price list will apply
4.2 The Seller reserves the right, by written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect the increase in the cost to the Seller which is due to a factor beyond the control of the Seller (such as without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), or any change in delivery dates, quantities or specifications for the goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis for both United Kingdom and International sales, and where the Seller agrees either to deliver the Goods or perform the Services or both otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance as well as for all other ancillary expenses in connection with the delivery of the Goods or the performance of the Services or both unless otherwise agreed in writing.
4.4 All quotations and prices are exclusive of any applicable domestic value added tax or similar sales taxes and any export or import taxes, tariffs, levies or duties, which shall in each case be charged at the rate applicable at the date of the invoice.
4.5 The Buyer agrees that it will not be entitled for any reason to make deductions or withholdings (by way of set-off, counterclaim or otherwise) from or withhold payment to the Seller.
4.6 The Buyer may arrange for a finance company to purchase the Goods or the Services or both direct from the Seller at the price payable under the Contract provided that the Buyer has given notice to the Seller before a Contract has been entered into and the Seller has consented in Writing to this arrangement.
- Terms of Payment
5.1 If the Contract is principally a contract for the sale of Goods the Seller shall be entitled to payment from the Buyer of the price of the Goods and (if any) the Services on the date fixed for delivery of the Goods or earlier if requested by the Seller. If the Contract is principally for the supply and acquisition of the Services the Seller shall be entitled to payment of the price of the Services and (if any) the Goods at the date fixed for the performance of the Services or earlier if requested by the Seller.
5.2 The Buyer shall pay the price of the Goods and the Services to the Seller. The Seller will be entitled to maintain an action for the price of the Goods notwithstanding that delivery has not taken place or that property in the Goods has not passed to the Buyer.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1 cancel, suspend or reduce any credit account, limit or facility afforded to the Buyer;
5.3.2 cancel the Contract or suspend any further performance or deliveries to the Buyer whether under the Contract or otherwise;
5.3.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 8 per cent per annum above the Bank of England’s base rate from time to time, until payment in full is made – interest to accrue daily and be compounded monthly;
5.3.4 charge the Buyer for administrative, legal and any other expenses incurred in recovering the debt from the Buyer; or
5.3.5 do any combination of the above
5.4 To minimise credit risk, the Seller may at any time prior to delivery of any Goods require that the Buyer delivers (at the Buyer’s cost) to the Seller a standing letter of credit or similar security on terms app[roved or specified in Writing by the Seller from a bank that is approved or specified in Writing by the Seller.
5.5 The Buyer shall, as a fundamental condition of the Contract, make all payments no later than the due date.
5.6 The banking of a partial payment received in respect of an invoice is not to be treated as a waiver or settlement for the remainder, unless and until expressly confirmed or agreed in Writing by the Seller.
- Goods Wrongly Ordered
6.1 Only with the written agreement of the Seller will the return of Goods wrongly ordered be accepted. Where Goods have been specially made or altered they will not be accepted for return. If the Seller agrees to accept the return of the wrongly ordered Goods, the Seller has the right to invoice the Buyer for all charges incurred by the Seller.
7.1 Delivery of the Goods within the UK shall be made by the Buyer collecting the Goods at the Seller’s premises on the date specified by the Seller for collection of the Goods or, if some other place for delivery is agreed by the Seller in writing, the Seller delivering the Goods to that place.
7.2 The performance of the Services shall take place at the place stated in the Contract for delivery of the Goods.
7.3 Any dates quoted for delivery of the Goods or performance of the Services are approximate only and the Seller shall not be liable for any delay in delivery of the Goods or performing the Services howsoever caused. Time for delivery or performance shall not be of the essence unless previously expressly agreed or approved by the Seller in Writing.
7.4 The Goods may be delivered or the Services performed by the Seller in advance of the quoted delivery/performance date upon giving reasonable notice to the Buyer.
7.5 If the Seller is either late or fails to deliver the Goods or perform the Services for any reason the Seller’s liability to the Buyer shall be limited to repayment to the Buyer of any part of the price received by the Seller and the Seller shall have no further liability to the Buyer for such delay or failure.
7.6 It is the Buyer’s responsibility to provide suitable, safe and clean off-loading facilities when delivery takes place otherwise than at the Seller’s premises. The Seller has no liability towards the Buyer whatsoever in respect of damage to the Goods arising from the off-loading facilities provided by the Buyer. The Seller is not required either to provide the Services or to deliver the Goods if either no facilities or inadequate facilities are provided or the facilities provided are, in any event in the opinion of the Seller, unsuitable, unsafe or unclean in any way. The Buyer is responsible for any transport, storage, insurance or other costs associated with having to redeliver Goods that could not be delivered due to any act or omission of the Buyer or if the delivery location is in the Seller’s opinion unsuitable, unsafe or unclean.
7.7 Where the Goods or the Services are to be delivered or performed in instalments, each delivery or performance shall constitute a separate contract.
- Risk and Property
8.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
8.1.1 in the case of Goods to be delivered at the Seller’s premises (including all goods for export from the UK) on the date specified by the Seller to the Buyer as the date on which the Goods are available for collection; or
8.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer fails to take delivery of the Goods, the time when the Seller has attempted delivery of the Goods.
8.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of the Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods.
8.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
8.4 The Seller (without prejudice to its other rights and remedies) will have the right to recover and sell Goods until such time as title of goods has passed to the buyer. The Buyer grants to the Seller, its agents or employees an irrevocable license to enter onto any premises where goods are believed to be stored for that purpose and in each such instance the Buyer will indemnify the Seller in respect of the costs and expenses incurred by the Seller in doing so.
8.5 If Goods are incorporated in or become a constituent of any other goods, the Seller will be given the ownership of those new goods (or combined goods) as security for payments of all sums owing by the Buyer to the Seller. In the event of the sale of goods on their own or incorporated in other goods, the Sellers beneficial entitlement will attach to the proceeds of sale or to the claim for such proceeds.
- Warranties and Limitation on Liability
9.1 NOTHING IN THESE CONDITIONS SHALL OPERATE OR BE INTERPRETED AS EXCLUDING OR LIMITING ANY PARTY’S LIABILITY FOR FRAUD, DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR FOR ANY OTHER MATTER, CIRCUMSTANCE OR EVENT FOR WHICH LIABILITY CAN NOT BE EXCLUDED OR LIMITED UNDER THE LAW. ALSO, THE STATUTORY RIGHTS (IF ANY) OF THE BUYER AS A “CONSUMER” UNDER THE CONSUMER PROTECTION ACT 1987, CONSUMER PROTECTION FROM UNFAIR TRADING REGULATIONS 2008/1277, THE CONSUMER CONTRACTS REGULATIONS 2013 OR OTHER MANDATORY REQUIREMENTS OF THE LAW ARE NOT AFFECTED BY THESE CONDITIONS.
9.2 All brand new Goods are sold with the benefit of such warranty as the manufacturer offers.
9.3 All second hand (or pre-used) Goods are sold under the Contract on an “as is” basis unless otherwise agreed or approved expressly in Writing between the parties (and (i) it is the Buyer’s responsibility to inspect the condition of such secondhand (or pre-used) Goods prior to ordering the same, and (ii) the Seller gives no warranty as to the condition, merchantable quality or fitness for the Buyer’s purpose of such Goods.
9.4 The above warranties in clauses 9.2 and 9.3 are given by the Seller subject to the following conditions:
9.4.1 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow operating instructions (whether oral or written), misuse or alteration or repair or (incorporation into another product or item) of the Goods without the Seller’s express prior approval in Writing;
9.4.2 the Seller shall be under no liability under the above warranty (or any other warranty condition or guarantee) if the total price for the Goods has not been paid on or by the due date for payment for any reason;
9.4.3 the above warranty does not extend to Goods used for hire purposes; and
9.4.4 the above warranty period may differ for certain goods as marked in the Seller’s catalogue or as per the Seller’s verbal or written quotation.
9.5 All warranties, conditions or other terms or duties implied by statute or common law are excluded to the fullest extent permitted by law to the extent not expressly incorporated into these Conditions.
9.6 It is the Buyer’s responsibility to inspect the Goods at the time of delivery. Any claim by the Buyer which is based on apparent damage to the Goods or defects to the Goods or the Services or the Goods or Services failure to correspond with the Buyer’s order shall (whether or not delivery or performance is refused by the Buyer) be notified to the Seller by endorsing the delivery note with a note of any deficiencies, defects or damages found or where the defect, damage or deficiency was not apparent on immediate reasonable inspection within three (3) days after delivery or performance (whichever is appropriate). If delivery or performance is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods or the Services or both and the Buyer shall be bound to pay the price as if the Goods and the Services had been delivered or performed in accordance with the Contract.
9.7 Where any valid claim in respect of any of the Goods or the Services or both which is based on any such defect damage or deficiency is notified to the Seller in accordance with these Conditions, the Seller at its sole discretion shall be entitled to repair the Goods or supply replacement Goods or Services (or the part in question) free of charge; or refund to the Buyer the price of the Goods and Services (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
9.8 WITHOUT PREJUDICE TO CLAUSE 9.5 BUT SUBJECT TO CLAUSE 9.11, THE SELLER SHALL NOT BE LIABLE TO THE BUYER BY REASON OF ANY REPRESENTATION (UNLESS FRAUDULENT), OR ANY IMPLIED WARRANTY, CONDITION OR OTHER TERM, OR ANY DUTY AT COMMON LAW, OR UNDER THE TERMS OF THE CONTRACT OR THE PROVISIONS OF ANY LEGISLATION FOR (I) ANY INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE OR LIABILITY, (II) ANY LOSS, DAMAGE OR LIABILITY THAT COULD NOT REASONABLY HAVE BEEN FORESEEN AT THE START OF THE CONTRACT, (III) ANY LOSS OF PROFIT, GOODWILL, BUSINESS, CONTRACT, OPPORTUNITY OR SIMILAR LOSSES, (IV) THE PROPORTION OF ANY LOSS, DAMAGE OR LIABILITY THAT COULD REASONABLY HAVE BEEN MITIGATED BUT WAS NOT MITIGATED, (V) THE PROPORTION OF ANY LOSS, DAMAGE OR LIABILITY CAUSED OR CONTRIBUTED TO BY THE BUYER OR ANY OF ITS SUB-CONTRACTORS (OTHER THAN THE SELLER) OR ANY OF THEIR RESPECTIVE DIRECTORS OR OTHER OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES, (VI) THE PROPORTION OF ANY LOSS, DAMAGE OR LIABILITY CUASED OR CONTRIBUTED TO BY ANY CIRCUMSTANCE, EVENT OR MATTER BEYOND THE REASONABLE CONTROL OF THE SELLER – IN EACH CASE ARISING FROM OR CONNECTED TO THE SALE OF THE GOODS (INCLUDING ANY DELAY IN SUPPLYING OR ANY FAILURE TO SUPPLY THE GOODS IN ACCORDANCE WITH THE CONTRACT OR AT ALL) OR THEIR USE OR RESALE BY THE BUYERS OR THE PERFORMANCE OF THE SERVICES OR THE EXPIRY OR TERMIANTION OF THE CONTRACT. THE ENTIRE LIABILITY OF THE SELLER UNDER OR IN CONNECTION WITH THE CONTRACT FOR ALL CLAIMS CONCERNING GOODS WILL NOT EXCEED THE PRICE OF THOSE GOODS AND FOR ALL CLAIMS CONCERNING SERVICES WILL NOT EXCEED THE PRICE OF THOSE SERVICES, EXCEPT AS EXPRESSLY PROVIDED IN THESE CONDITIONS.
9.9 If Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with the specification submitted by the Buyer, the Buyer will indemnify the Seller in full and on demand against all loss, damages, costs and expenses ordered 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, trademark or other industrial or intellectual property rights of any third party which results from the Seller’s use of the Buyers specification.
9.10 The parties will take all reasonable steps to seek to discuss and resolve disputes between them in good faith and in a time and cost efficient manner.
- Insolvency of Buyer
10.1 This clause applies if:–
10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);
10.1.2 an encumbrancer takes possession, or a receiver or administrator is appointed, of any of the property or assets of the Buyer;
10.1.3 the Buyer ceases, or threatens to cease, to carry on business;
10.1.4 the Buyer’s total assets are or become less than its total liabilities for any reason;
10.1.5 the Buyer is unable to pay its debts as they fall due;
10.1.6 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly; or
10.1.7 any combination of the above applies
10.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract without any liability to the Buyer, and if the Goods have been delivered or the Services performed or both but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11 Data Protection
11.1 Both parties will comply with all applicable requirements of the Data Protection Legislation.
12.1 Any notice required or permitted to be given by either party to the other under these Conditions 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.
12.2 Any reference to any legislation in these Conditions is to it as amended or replaced from time to time (and shall be deemed to include all subordinate legislation made under it).
12.3 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
12.5 No forbearance, indulgence or relaxation on the part of the Seller shown or granted to the Buyer in respect of any of the provisions of these Conditions will in any way affect, diminish, restrict or prejudice the rights or powers of the Seller or operate or be deemed to be a waiver or any breach by the Seller of the terms and conditions of the contract.
12.6 These Conditions and the contract between the Seller and the Buyer governed by these Conditions will be governed by English law in every particular.
12.7 The Conditions shall be interpreted without reference to their headings.
12.8 The Seller will not be liable to the Buyer or be deemed to be in breach of a Contract by reason of any delay in performing or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without limiting the foregoing, the following will be regarded as causes beyond the Seller’s reasonable control:
12.8.1 act of God, explosion, flood, tempest, fire or accident;
12.8.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
12.8.3 Acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of governmental, parliamentary or local authority;
12.8.4 import or export regulations or embargoes;
12.8.5 strikes, lock outs or other industrial action or trade disputes (whether involving employees of the company or of a third party);
12.8.6 difficulties of obtaining raw materials, labour, fuel, parts or machinery; and
12.8.7 power failure or breakdown in machinery.
- Health and Safety
13.1 Any liability for ensuring compliance with any requirement statutory or otherwise concerning health safety or welfare or any other matter which may relate to or affect the specification of the Goods or the Services or to ensure the safety of the Sellers servants and agents whilst carrying out the Services on any premises designated by the Buyer rests exclusively on the Buyer. The Buyer shall indemnify and hold harmless the Seller in full and on demand against any and all costs claims demands liabilities damages or expenses suffered or incurred by the Seller as a result of any third party claim against the Seller resulting from or by reference to the Goods or their use or the Services.
14.1 Where the Goods are supplied for export from the United Kingdom and a conflict arises between this clause and the other Conditions, this clause shall apply.
14.2 The Buyer shall be responsible for insuring the goods in transit from the Sellers premises and complying with any legislation or regulations governing the importation of the Goods into the country of destination including promptly obtaining all necessary import licenses clearances and other consents and for the payment of any duties thereon.
14.3 For international supplies, the Goods shall be supplied and deemed delivered Ex Works (at the Seller’s premises situated at its the above stated registered office in England) The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which shall be apparent upon inspection and which is made after shipment in respect of any damage during transit.
14.4 Payment of all amounts due to the Seller shall be made by telegraphic transfer directly into the Seller’s bank account or by bankers draft in Sterling made payable to the Seller before Goods are dispatched.