Terms of Sale

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Terms of Sale

TERMS AND CONDITIONS OF SALE – December 2016


1 INTERPRETATION

The following definitions apply to these terms and conditions:
Carrier: the carrier contracted by Celotex to deliver the Goods to the Customer.
Celotex: Saint-Gobain Construction Products UK Limited (Company Number 00734396) trading as Celotex and trading from Lady Lane Industrial Estate, Hadleigh, Suffolk, IP7 6BA.
Contract: Any contract between Celotex and the Customer for the sale and purchase of the Goods, incorporating these Terms.
Customer: The person, firm or company who purchases the Goods from Celotex.
Delivery Point: The place where delivery of the Goods is to take place under condition 5.2.
Goods: Any goods or services agreed in the Contract to be supplied to the Customer by Celotex (including any part or parts of them).
Terms: These terms and conditions.


2 APPLICABILITY

2.1 All orders for Goods, whether on the Customer’s order form or otherwise, constitute an offer by the Customer to buy the Goods and shall be incorporated in these Terms to the exclusion of all other terms and conditions (including any terms and conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document). Only when Celotex accepts an offer by means of e-mail or other form of official acknowledgement does a contract incorporating these Terms come into effect.
2.2 These Terms shall prevail over any trade or customary practice or previous course of dealing between Celotex and the Customer.
2.3 These Terms apply to all sales by Celotex and any variation to these Terms and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by an authorised officer of Celotex. The Customer acknowledges that  it has not relied on any statement, promise or representation made or given by or on behalf of Celotex which is not set out in the Contract. Nothing in these Terms shall exclude or limit the liability of Celotex for fraudulent misrepresentation.


3 DESCRIPTION

3.1 The quantity and description of the Goods shall be as set out in Celotex' quotation or acknowledgement of order.
3.2 All samples, descriptive matter, specifications and advertising issued by Celotex and any descriptions or illustrations contained in the catalogues or brochures of Celotex are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.


4 PRICE OF GOODS

4.1 Prices are subject to change without notice. Goods will be invoiced at prices ruling at the time of despatch.
4.2 In the event of a price increase, all unfulfilled orders or part orders on hand and accepted by Celotex prior to the effective date of the price increase will be invoiced at the increased price in effect at the time of despatch, unless cancelled by the Customer by notice
in accordance with these terms and conditions and received by Celotex before despatch.
4.3 Subject to condition 4.2, prices on quotations are only valid for one month from the date of quotation unless otherwise stated in writing and signed by an authorised officer of Celotex.
4.4 All prices quoted are exclusive of VAT.


5 DELIVERY AND RISK

5.1 Delivery or any other dates advised are approximate only and time for delivery shall not be of the essence of the Contract. Celotex shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the negligence of Celotex), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
5.2 Unless otherwise agreed in writing by Celotex, delivery of the Goods shall take place at the Customer’s principal place of business and the Customer shall provide Celotex with appropriate access to a suitable point of delivery at all times during normal business for a period of 28 days after formation of the Contract and the Customer shall be responsible for unloading and storage of the Goods. Where delivery is delayed in accordance with condition 5.1 the 28 day time period referred to in this condition shall be extended accordingly.
5.3 The Customer shall notify the Carrier and Celotex in writing of any shortages of or damage to the Goods within 7 days of delivery, in default of which Celotex shall be deemed to have fulfilled all of its obligations under the Contract and the Customer shall be deemed to have accepted the Goods.
5.4 Risk in respect of all Goods supplied by Celotex will pass to the Customer at time of delivery.
5.5 If for any reason the Customer fails to accept or take delivery of the Goods:
5.5.1 risk in the Goods shall pass to the Customer (including for loss or damage caused by Celotex’ negligence) at the time of attempted delivery;
5.5.2 the Customer will be immediately liable to pay Celotex a sum equal to 10% of the full Contract price in respect of storage, administration and carriage costs; and
5.5.3 Celotex will attempt to re-deliver the Goods within 28 days.
5.6 Each instalment of the Goods shall be treated as a separate contract. Failure to deliver an instalment will not entitle the Customer to reject any further instalments.
5.7 The quantity of any consignment of Goods as recorded by Celotex upon despatch from its place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence to the contrary.
5.8 Celotex shall not be liable for any nondelivery of Goods (even if caused by its negligence) unless the Customer gives written notice to Celotex of the non-delivery within seven days of the date when the Goods should have been received.
5.9 Any liability of Celotex for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.


6  TITLE  TO  THE  GOODS

6.1 Title to the Goods supplied is retained by Celotex and shall not pass to the Customer until all the Goods supplied have been paid for in full and all other goods supplied to the Customer by Celotex under any arrangement under which Celotex retains title in those goods until payments have been paid for in full.
6.2 The Customer is a fiduciary agent of Celotex holding the Goods as bailee in relation to the Goods supplied and;
6.2.1 will not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.2.2 will maintain the Goods in satisfactory condition and keep them insured on behalf of Celotex for their full price against all risks to the reasonable satisfaction of Celotex (on request the Customer shall produce the policy of insurance to Celotex).
6.2.3 if the Goods are sold by the Customer prior to payment to Celotex the proceeds of the sale shall be the property of Celotex and shall be identified and held on trust for Celotex accordingly; and
6.2.4 the Goods shall be kept separate from all other goods of a similar kind so that Celotex can readily identify its property.


7 PAYMENT TERMS

7.1 Full payment for the Goods shall be made in cleared funds in Pounds Sterling to Celotex not later than the last day of the month following the month of invoice, unless otherwise agreed by Celotex in writing signed by an authorised officer of Celotex. Time for payment is of the essence.
7.2 In the event of late payment or if any agreed credit limit is exceeded, Celotex may irrespective of its other rights or remedies withhold delivery of further goods.
7.3 Celotex reserves the right before delivery to require payment for the Goods in full or in part.
7.4 The Customer shall on any late payment and until Celotex receives payment in full, pay to Celotex interest at the rate of 3% above The Royal Bank of Scotland’s base lending rate from time to time calculated on a daily basis (both before and after judgement).
7.5 All payments payable to Celotex under the Contract shall become due immediately on its termination despite any other provision.
7.6 The Customer shall make all payments due under the Contract in full without any deduction whether by way of setoff, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by
Celotex to the Customer.
7.7 Where the customer fails to pay any invoice issued by Celotex by the due date then Celotex may set-off any moneies Celotex owes the Customer by way of rebate payments, other support payments or any other monies due from Celotex to the Customer against monies
owed by Customer to Celotex.


8  DEFAULT

8.1 Any period of credit is immediately determined and the Customer’s right to possession of the Goods shall terminate immediately and Celotex (by its employees, servants and agents) may immediately and without prior notice to the Customer terminate the Contract and/or regain possession of the Goods or any other goods supplied by Celotex under any other arrangement under which title to those goods is still retained by Celotex if:
8.1.1 the Customer fails to observe or perform any of these Terms or the terms and conditions of any other arrangement made between the Customer and Celotex under which the title in any goods supplied under that arrangement is still retained by Celotex; or
8.1.2 the Customer being a company ceases or threatens to cease to carry on business or an order is made or an effective resolution is passed for the winding up of the Customer or if a receiver or administrative receiver is appointed or if in the opinion of Celotex the Customer is unable to pay its debts or is likely to go into liquidation or administration or recievership or if the Customer seeks a reorganisation arrangement, adjustment ot composition of its debts or;
8.1.3 the Customer being an individual is adjudged bankrupt or in the opinion of Celotex is unable to pay his debts or is likely to be adjudged bankrupt or if the Customer seeks a reorganisation arrangement or adjustment or composition of the Customer’s debts; or
8.1.4 the Customer encumbers or in any way changes any of the Goods.
8.2 To enable Celotex to regain possession of the Goods the Customer gives Celotex its servants and agents an irrevocable licence at any time to enter and to remain on any land or premises where Celotex believes the Goods are located and Celotex shall not as a result be liable for any claims, actions or indictments or any proceedings whatsoever brought by the Customer or anyone claiming under the Customer.
8.3 All costs, charges and expenses incurred by Celotex in regaining possession of the Goods and in collecting any monies owed by the Customer to Celotex will be borne by the Customer and included as part of the monies owed by the Customer.
8.4 Celotex shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Celotex.
8.5 Where Celotex is unable to determine whether any Goods are the goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by Celotex to the Customer in the order in which they were invoiced to the Customer.
8.6 Notwithstanding and foregoing, and without affecting any other right or remedy available to it (including but not limited to Celotex’ rights contained in this condition 8, which shall remain in effect), Celotex may terminate any Contract with the Customer with immediate effect by giving written notice to the Customer if the Customer commits a material breach of any termof these Conditions and/or the Contract which breach is irremediable or (if such breach is redmediable) fails to remedy that breach within a period of seven (7) days after being notified in writing to do so.


9  WARRANTIES

9.1 Celotex warrants the Goods against defects in design, materials and workmanship arising during normal and proper use for a period of 12 months from delivery and that the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979 and reasonably fit for their intended purpose.
9.2 Celotex shall not be liable for a breach of the warranty in condition 9.1 unless:
9.2.1 the Customer gives written notice of the defect to Celotex, and, if the defect is as a result of damage in transit, to the Carrier, within seven days of the time when the Customer discovers or ought to have discovered the defect; and
9.2.2 Celotex is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by Celotex) returns such Goods to Celotex (at Celotex’ cost) to be examined.
9.3 Celotex’ obligations under this warranty are limited at its option to repairing, replacing or refunding the price of the Goods which develop such defects provided that the Customer will provide Celotex with all necessary access during normal working hours to collect the defective Goods and all information to enable Celotex to ascertain the nature of the defect.
9.4 The above warranties replace and exclude all conditions in nominate terms, warranties or representations whether expressed or implied by statute, common law, trade usage, custom or previous course of dealing in respect of the quality, fitness for purpose, merchantability, description of the Goods or otherwise.
9.5 Celotex shall be under no obligation under condition 9.3 to repair, replace or make good any loss, damage or defect which results from: incorrect installation, alteration or modification of the Goods without Celotex’ prior written consent; fair wear and tear; any act, neglect or fault of the Customer or any third party (including but not limited to abnormal conditions of storage or use); or the Customer using the Goods after giving notice of the defect in accordance with condition 9.2.
9.6 If Celotex complies with condition
9.3 it shall have no further liability for a breach of any of the warranties in condition 9.1 in respect of such Goods.
9.7 Where Celotex is not the manufacturer of the Goods, Celotex shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to Celotex.


10  LIMITATION  OF LIABILITY

10.1 Subject to condition 9.1, the following provisions set out the entire financial liability of Celotex (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:
10.1.1any breach of the Contract;
10.1.2 any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
10.1.3 any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these Terms excludes or limits the liability of Celotex:
10.3.1 for death or personal injury caused by the negligence of Celotex; or
10.3.2 under section2(3), Consumer Protection Act 1987; or under section 2 Consumer Protection Act 1987; or
10.3.3 for any matter which it would be illegal for Celotex to exclude or attempt to exclude its liability; or
10.3.4 for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.1 and condition
10.4.1 the total liability of Celotex in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
10.4.2 Celotex shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.


11 ASSIGNMENT
11.1 Celotex may assign the Contract or any part of it to any person, firm or company.
11.2  The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Celotex.


12 FORCE  MAJEURE
Celotex reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Celotex.


13 COMMUNICATIONS
13.1  All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or email to the receiving party’s usual place of business or registered office, main fax number, or email address referred to in the acknowledgement of order (as in the case may be).
13.2  Communications shall be deemed to have been received two working days after posting if posted first class or on the day of delivery if hand posted or on the date of transmission if sent by fax or email before 4.00 pm (otherwise the next day).


14  GENERAL

14.1 Each right or remedy of Celotex under the Contract is without prejudice to any other right or remedy of Celotex whether under the Contract or not.
14.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness,
voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
14.3 Failure or delay by Celotex in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
14.4 Any waiver by Celotex of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
14.5 The parties of the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.6 The Customer shall be liable for and shall indemnify and hold Celotex harmless from any and all liability, loss, claims, damages and costs, which Celotex may sustain or incur, arising out of or in any way connected with the Customer’s failure to comply with conditions 5.10 and/or 15 hereof.
 

15 SANCTIONS COMPLIANCE

It is Celotex’ and Celotex’ group’s policy to comply with all applicable sanctions and legal requirements for the import and export of goods, technology and services. Celotex is committed to ensuring compliance with all regulatory and licensing requirements relating to international trade. Celotex does not permit the supply of any of it’s goods to any individuals, companies or organisations that are subject to any trade, economic or financial sanctions, embargoes or similar restrictive measures administered, enacted or enforced by the UK, EU, UN or USA (“Sanctioned Entities”). By entering into this Contract the Customer agress not to re-sell or otherwise transfer the goods supplied by Celotex, either directly or indirectly, to any Sanctioned Entities.


16 ANTI-BRIBERY AND CORRUPTION

The Customer shall ensure that in any dealings with Celotex, neither it or its employees or agents shall commit any offence under the Bribery Act 2010 (“the Act”) including not engaging in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Act. The Customer shall inform Celotex immediately it becomes aware of any actions between the parties that could constitute an offence under the Act.


17  GOVERNING LAW 
These terms and conditions shall be governed by English Law and Celotex and the Customer submit to the exclusive jurisdiction of the English Courts.