Terms and Conditions
1.1 The definitions in this clause apply to this Order (unless the context requires otherwise).
“Applicable Law” means the laws of England and Wales and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to the performance of the Services;
“Business Day” means any day other than a Saturday, Sunday, bank holiday or public holiday in England;
“Delivery” means completion of delivery of Products in accordance with the Order and these terms and conditions;
“Delivery Location” the location set out in the Order or as otherwise agreed between the parties in writing;
“Effective Date” means the date of this agreement;
“Force Majeure” means circumstances beyond the reasonable control of a party;
“Insolvent” means a party: (a) proposes or passes a resolution for its winding up or in the case of a limited liability partnership proposes or determines that it will be wound up; (b) is subject to an application to or order or notice issued by a court or other authority of competent jurisdiction for its winding up or striking off; (c) enters administration or is the subject of an application for administration filed at any court or a notice of intention to appoint an administrator given by any person filed at any court; (d) proposes, makes or is subject to, a company voluntary arrangement or a composition with its creditors generally, an application to a court of competent jurisdiction for protection from its creditors generally or a scheme of arrangement under Part 26 Companies Act 2006; (e) has a receiver or a provisional liquidator appointed over any of its assets, undertaking or income; (f) ceases to trade or appears, in the reasonable opinion of GAE, to be likely to cease to trade; (g) is unable to pay its debts within the meaning of section 123 Insolvency Act 1986; or is the subject of any event that is equivalent or similar to any events mentioned in points (a) to (g) above;
“Order ” means the order confirmation agreed between the parties in writing;
“Price” means the price for the Products;
“Products” means the products described in the Order;
“Warranty” means the warranty given in respect of the Products as detailed in GAE’s catalogue or otherwise in writing.
2.1 The Customer shall use its reasonable endeavours to deliver each Order to the Delivery Location by the Delivery Date.
2.2 Delivery is completed when GAE makes the Products available for unloading at the Delivery Location.
2.3 GAE may deliver Orders by instalments, which may be invoiced and paid for separately.
2.4 The Customer accepts that meeting the Delivery Date is not entirely in the control of GAE and that any Delivery Date is an estimate only and time of Delivery is not of the essence. Delays in the Delivery of an Order shall not entitle the Customer to (a) refuse to take Delivery of the Order; or (b) terminate the Order.
2.5 GAE shall have no liability for any failure or delay in delivering an Order to the extent that any failure or delay is caused by the Customer’s failure to comply with its obligations to accept Delivery.
2.6 If the Customer fails to take Delivery of an Order, then GAE may treat the Order as cancelled and reserves the right to invoice the Order.
2.7 The parties agree that if, in respect of an Order, GAE delivers up to and including 10% more or less than the quantity of Products ordered, the Customer shall not be entitles to reject the Order, but a pro rata adjustment shall be made to the Order invoice.
2.8 Notification of any non-delivery or short delivery (measured by number) or damage in transit must be made in writing to GAE within five Business Days of the date of GAE’s invoice.
2.9 GAE will, at its option, either, replace or refund the whole or such part of the Price as may be relevant to compensate the Customer for any such non or short delivery notified in accordance with Clause 2.7 or, in the case of damaged Products only, these must be returned prior to any refund or replacement of such Products.
2.10 The Customer may reject any Products delivered to it that do not comply with the specific Warranty for that product, provided that notice of rejection is given to GAE within ten Business Days of Delivery.
2.11 If the Customer fails to give notice of rejection in accordance with clause 2.9, it shall be deemed to have accepted the Products.
3. RISK AND TITLE
3.1 GAE shall bear the risk of loss or damage to the Products up to Delivery following which risk shall pass to the Customer.
3.2 Title to the Products shall not pass to the Customer until the earlier of: (a) GAE receives payment in full (in cash or cleared funds) for the Products, in which case title to these Products shall pass at the time of payment of all such sums; and (b) the Customer resells those Products, in which case title to those Products shall pass to the Customer at the time specified in clause 1.1.
3.3 Until title to Products has passed to the Customer, the Customer shall (a) store those Products separately from all other goods held by the Customer so that they remain readily identifiable as GAE’s property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to those Products; and (c) maintain those Products in satisfactory condition and keep them insured on GAE’s behalf for their full price against all risks with an insurer that is reasonably acceptable to GAE.
3.4 Subject to clause 3.5, the Customer may resell or use Products in the ordinary course of its business before GAE receives payment for the Products. However, if the Customer resells the Products before that time: (a) it does so as principal and not as GAE’s agent; and (b) title to those Products shall pass from GAE to the Customer immediately before the time at which resale by the Customer occurs.
3.5 If before title to Products passes to the Customer the Customer becomes Insolvent, then, without limiting any other right or remedy GAE may have: (a) the Customer’s right to resell Products or use them in the ordinary course of its business ceases immediately; and (b) GAE may at any time: (i) require the Customer to deliver up all Products in its possession that have not been resold, or irrevocably incorporated into another product; and (ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the relevant Products are stored to recover them.
4. PRICE AND PAYMENT
4.1 GAE shall invoice the Customer for the Services in accordance with the Order.
4.2 The Customer shall pay each invoice submitted by GAE: (a) unless otherwise agreed between the parties in writing and subject to satisfactory credit approval, within 30 days of the date of the invoice; and (b) in full and in cleared funds to a bank account nominated in writing by GAE.
4.3 Time for payment shall be of the essence.
4.4 All amounts payable by the Customer are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under this Agreement by GAE to the Customer, the Customer shall, on receipt of a valid VAT invoice from GAE, pay to GAE such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
4.5 All amounts due shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5. LIMITATION OF LIABILITY
5.1 Neither party limits its liability for: (a) death or personal injury caused by its negligence, or that of its employees, agents or sub-contractors; (b) fraud by it or its employees; or (c) breach of any obligation as to title implied by statute; or (d) any other act or omission, liability for which may not be limited under Applicable Law.
5.2 GAE shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, howsoever, which fall within any of the following categories: (a) special damage even if GAE was aware of the circumstances in which such special damage could arise; (b) loss of profits; (c) loss of anticipated savings; (d) loss of business opportunity; (e) loss of goodwill; (f) loss or corruption of data.
5.3 Subject to clause 5.1, the total liability of GAE in connection with any Order, shall in no circumstances exceed a sum equal to the Price.
6. CONFIDENTIALITY Neither party will (except in the proper course of its or his duties) use or disclose to any third party (and will use his best endeavours to prevent the publication, disclosure or discovery of) any confidential information of the other party.
7.1 Without affecting any other right or remedy available to it, GAE may terminate this Order immediately by giving written notice to the Customer if: (a) the Customer becomes Insolvent; (b) the Customer ceases, or threatens to cease, to carry on all or substantially the whole of its business; or (c) there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010); or (d) the Customer fails to pay any amount due under this Order on the due date for payment or (e) GAE reasonably suspects fraud.
7.2 On termination of this Order the Customer shall immediately pay to GAE all of GAE’s outstanding unpaid amounts and, in respect of Services supplied but for which no invoice has been submitted, GAE shall submit an invoice, which shall be payable by the Customer immediately on receipt.
8. FORCE MAJEURE
Neither party will be liable to the other to the extent that it is unable to perform its obligations by reason of Force Majeure provided the party so unable to perform promptly notifies the other of the Force Majeure and its causes.
9.1 Any notice or other communication given to a party under or in connection with the Order shall be in writing, addressed to that party at its registered office, and shall be delivered personally or sending it by pre-paid registered post, or by sending it by email to the notified email address notified.
9.2 A notice or other communication shall be deemed to have been received at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
9.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.1 Unless the Customer has been specifically authorised to do so by GAE in writing, it will not bind GAE in any manner or hold itself out as having authority to bind GAE.
10.2 The illegality, invalidity or unenforceability of any clause or part of this Order will not affect the legality, validity or enforceability of the remainder of it. If any clause or part of this Order is found by any competent court or authority to be invalid, illegal or unenforceable, the parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid or unenforceable.
10.2.1 A waiver of any right or remedy under this Order or by law shall only be effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
10.2.2 A failure or delay by a party to exercise any right or remedy provided under this Order or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Order or by law shall prevent or restrict the further exercise of that or any other right or remedy.
10.3 Each party on behalf of itself acknowledges and agrees with the other party that this Order constitutes the entire agreement and understanding between the parties and supersedes any previous arrangement, understanding or agreement between them. Nothing in this Order will, however, limit or exclude any liability for fraud.
10.4 GAE may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Order.
10.5 The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Order without the prior written consent of GAE.
10.6 No variation of this Order will be valid unless it is in writing and signed by or on behalf of each of the parties.
10.7 A person who is not a party to this Order will not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Order but this does not affect any right or remedy of a third party which exists, or is available, apart from under that Act.
10.8 The formation, construction, performance, validity and all aspects whatsoever of this Order (including non-contractual disputes or claims) as well as matters connected with the subject-matter thereof will be governed by English Law and the parties agree to the exclusive jurisdiction of the courts of England and Wales.