TERMS AND CONDITIONS OF SALE
1.1. In these conditions of sale, the following words shall have the following meanings:-
Account Customer means a Customer which is so designated by the Company, and, subject to these terms and conditions, which the Company may have authorised to purchase Goods on credit terms and Customer Account shall be construed accordingly.
Business Customer means any Customer who is not a Consumer Customer.
Customer means a Business Customer or a Consumer Customer.
Company means SMT trading as surclean.co.uk, whose principal place of business is at Samuel White's Ind. Est., Cowes, I.o.W., PO31 7LP, U.K. references to Surcleanshall be construed as references to SMT. "Conditions" means the terms and conditions set out in this document and in the Formal Order Confirmation. Where any terms below conflict with any terms in the Formal Order Confirmation the terms in the Formal Order Confirmation will take precedence.
Consumer Customer means any natural person who purchases Goods from the Company other than in the course of their business or for use in their business and who identifies themselves as a consumer when registering with the Company or placing any order.
Contract means any contract between the Company and the Customer for the sale of any Goods.
Delivery Address means the address in the United Kingdom for the delivery of Goods as specified by the Customer to the Company's website or in the account application form for the Customer's Customer Account or such other address as may be agreed in writing between the Company and the Customer. Where the Customer is not an Account Customer and paying by a credit card or debit card, the Delivery Address shall be the address at which the card is registered, save as may be agreed in writing between the Surclean and the Customer.
Deliveries Policy means the Company delivery policy which is published on the Company's website, as may be amended by the Company from time- to-time.
Distance Selling Regulations means the Consumer Protection (Distance Selling) Regulations 2000, as amended from time to time. Goodsmeans any goods (including computer software, which shall be deemed to be goods in any event) or materials which the Company agrees to provide to the Customer
Formal Order Confirmation means the communication sent by the Company to the Customer accepting the Customer's order. Privacy and Security Policymeans the Company privacy and security policy which is published on the Companywebsite, as may be amended by the Company from time-to-time.
Returns Policy means the Company returns policy which is published on the Company's website, as may be amended by the Company from time-to- time.
1.2. In these Conditions:
1.2.1. references to any statute or statutory provision shall, unless these Conditions otherwise requires, be construed as a reference to that statute or provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.2.2. the headings will not affect the construction of these Conditions.
2. APPLICATION OF CONDITIONS
2.1. By placing an order with the Company, the Customer hereby warrants and represents that they are either a Business Customer or a Consumer Customer, as identified by them in the process of registering with the Company or placing any order.
2.2. These Conditions may be amended from time to time and shall take effect from the date that the notification of any change is made on the Company website. Advance notification of such changes will not necessarily be given.
2.3. These Conditions apply to all Contracts for the sale of Goods entered into by the Company, which, for the avoidance of doubt, shall not be made, save as follows:
2.3.1. In the case of a Customer with a Company Account, the Contract shall be deemed made upon dispatch of the Company's Formal Order Confirmation to the Customer;
2.3.2. In all other cases, the Contract shall be deemed made upon and only upon the Company having received payment in full, in cleared funds, following dispatch of the Company's Formal Order Confirmation to the Customer.
2.4. By placing an order with the Company the Customer agrees to deal with the Company on these Conditions to the exclusion of all other terms, conditions or warranties contained in or referred to in the Customer's order or correspondence or elsewhere or implied by trade, custom, practice or course of dealing.
2.5. Any Goods displayed at a price by the Company does not constitute an offer. The Company reserves the right to withdraw or revise a price at any time prior to the conclusion of a Contract.
2.6. The Company will not transact business with any natural person who is less than 18 years old.
2.9. For the purposes of these Conditions and any Contract, the Company is entitled to treat as conclusive any representation from a person who is or appears to be an employee, representative or agent of the Customer who in the Company's reasonable opinion appears to have the requisite authority.
2.10. The Company reserves the right to refuse to make any Contract with any Account Customer or to refuse to make or complete delivery of any Goods to any Account Customer if it has reason to believe that there is a reasonable prospect that the Account Customer will not be in a position to pay for the Goods in question.
2.11. Subject to the application of the Distance Selling Regulations in the case of Consumer Customers, Contracts may not be cancelled except with written consent from the Company (which it may refuse at its absolute discretion). If the Company agrees to any such cancellation then it may impose a cancellation fee and a restocking fee.
2.12. The Company reserves the right to change a minimum order fee in relation to any Contract.
3. PRICING AND DESCRIPTION OF GOODS
3.1. All Goods are subject to availability and all prices are subject to alteration. If an order cannot be fulfilled for any reason following a Contract having been made, a full refund will be issued, back on to the Customer's credit or debit card, or by cheque or the Customer's Company Account will be re-paid or re- credited, as appropriate.
3.2. In the event of either an error in the Company's published prices or a price change for any Goods, the Customer will be informed by the Company as soon as possible and offered the option of either reconfirming the order at the correct price, or cancelling the order. If a confirmation is not received from the Customer within 2 working days of being informed of the error or price change, the order will automatically be cancelled. If the order is cancelled automatically or if the Customer cancels the order under this Clause 3.2, a full refund or credit of any sum that the Customer has paid or that has been debited from the Customer's credit or debit card or the Customer's Company Account will be re-paid or re-credited, as appropriate.
3.3. In the circumstances set out in Clauses 3.1 and 3.2 above, the Company shall have no further liability to the Customer whatsoever under the Contract.
3.4. All prices advertised by the Company are subject to VAT. All payments shall be made in Sterling and a delivery charge will be made for the goods which will vary according to the shipping method requested, the weight and volume of the goods ordered and the Customer's geographical location.
3.5. The cost of pallets and returnable containers may be charged to Customers in addition to the price of the Goods but full credit will be given to the Customer for such pallets and returnable containers, provided they are promptly returned undamaged to the Company.
4.1. Payments are accepted by credit and debit card. Payments received via this method are taken when the Goods are despatched. Where a credit card is used, the Company reserves the right to charge an additional fee. Payments may also be accepted by electronic funds transfer or by cheque by prior arrangement in writing between the Company and the Customer.
4.2. For Customers without a Company Account, Goods will not be dispatched until cleared funds have been received by the Company and payment shall not be deemed to have been made until such full cleared funds have been received by the Company.
4.3. The obligation upon the Customer to make any payment shall be of the essence and is a fundamental term of these Conditions, breach of which shall entitle the Company to terminate any Contract immediately.
4.4. For Customers with a Company Account, the Company's invoices must be paid, in full, strictly within 30 days of the invoice date but the Company reserves the right to seek cleared funds in advance in relation to any Contract. Invoices will normally be issued on the day Goods are despatched and may be issued electronically.
4.5. Advance payment may be required for new Customers for a Company Account, pending credit applications and or references and/or in any other circumstances where the Company (in its entire discretion) deems this appropriate.
4.6. Under the Late Payment of Commercial Debts Regulations 2002 the Company reserves the right to exercise its statutory right to charge interest and an administration charge on all invoices overdue from Business Customers.
5.1. Delivery times quoted by the Company are estimates only. They are based on the availability of the Goods, normal processing time and delivery times as available by the relevant couriers used.
5.2. Whilst the Company strives to ensure that all Goods are delivered to the Delivery Address in accordance with estimates, it shall not be liable for any loss or damage suffered by the Customer even through reasonable or unavoidable delay in delivery or for Goods delivered on any day different to that which may be requested by the Customer. Goods may be delivered in several consignments and the Company will endeavour to inform the Customer as soon as possible if this is the case.
5.3. Orders placed before 3.00pm on a working day (i.e. any day other than weekend or a Bank or public holiday) will usually be processed that day and be delivered as per the agreed delivery option, provided no additional security checks are required and providing that all stock items are available. Please note, no deliveries are made on a Saturday or Sunday due to courier restrictions unless special arrangements are made, and subject to availability.
5.4. The Company may make deliveries in advance of any estimated delivery date.
5.5. The Company will only deliver to addresses registered with the web site.
5.6. The Company reserves the right to refuse delivery to an address where it has any reasonable cause to doubt successful shipment of the order. In this case, the Customer shall provide an alternative address for delivery.
5.7. Subject to any special offers from time to time in force, all deliveries will be subject to a delivery charge. Delivery shall be to suitable ground floor property, warehousing, stores or reception areas. The Company must be notified in advance if the Customer has any unusual delivery requirements as the Company reserves the right, in that case, to levy an additional delivery charge.
5.8. Subject to the application of the Distance Selling Regulations, if the Customer deliberately fails to take delivery if the Goods, then, without prejudice to any other rights or remedy available to the Customer, the Company may:-
5.8.1. store the Goods until the actual delivery is made and charge the Customer for reasonable costs of doing so, including insurance and storage; or,
5.8.2. sell the Goods at the best readily obtainable price (after deducting all reasonable storage and selling expenses) account to the Customer for any excess over the price the Customer agreed to pay for the Goods or charge the Customer for any shortfall below the price the Customer agreed to pay for the Goods plus a handling fee.
5.9. Further information on deliveries may be obtained by reviewing the Deliveries Policy. The Deliveries Policy is incorporated into these Conditions by reference and shall be complied with by the Company and the Customer. In the case of any inconsistency between these Conditions and the Deliveries Policy, the terms of these Conditions shall prevail.
6.1. The Customer acknowledges that the Company may not manufacture all of the Goods. The Customer acknowledges that as an intermediate supplier of the Goods the Company may have no option to check the Goods for obvious signs of damage and does not in any way inspect the quality or condition of the Goods themselves.
6.2. The Customer acknowledges that the manufacturer of the Goods typically provides warranty assurances directly for the benefit of end users of the Goods.
6.3. The Customer acknowledges that the Company does not hold itself out as having any particular expertise in relation to the actual Goods and that any information provided by the Company in relation to the Goods is merely passed on by the Company from the manufacturer of the Goods.
6.4. The Company does not sell Goods on a trial basisand the Customer agrees that it relies entirely on its own skill and judgement in evaluating the suitability and fitness of the Goods for its purpose.
6.5. The Customer acknowledges that the prices charged by the Company for the Goods are based strictly on the acknowledgements set out in Clauses 6.1 to 6.4 and based on those acknowledgements:
6.5.1. use its reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given to the Company; and
6.5.2. comply with its returns policy as set out in Clause 8;
6.6. The Company may change the specification of Goods, prior to delivery, where there is no material adverse effect on quality or performance or to comply with applicable safety or other statutory requirements.
6.7. Where the Customer is a Business Customer, they agree that the Company will not (subject to Clauses 6.5 and 10.1) be responsible for or give any warranties in relation to the quality or suitability of the Goods and that provided the Company complies with the provisions of Clause 6.5 the Company will (subject to Clause 10.2) have no further liability (in contract, tort, including but not limited to negligence, or otherwise) to any Business Customer for any quality or suitability claims in relation to the Goods.
7. MANUFACTURE BID PRICING FOR BUSINESS CUSTOMERS
7.1. In certain circumstances, in relation to Business Customers, the Company may apply Manufacturer Bid Pricing ('MBP') to Goods supplied under Contracts. In those circumstances, the Business Customer must obtain and comply with any applicable guidelines of the manufacturer relating to the MBP and, at the request of either the Company or the manufacturer, will promptly provide adequate proof that such guidelines have been followed.
7.2. In the event that MBP is not granted or is granted but then revoked as a result of any failure by the Business Customer under Clause 7.1, any MBP applied to the Goods by the Company will cease to apply and the full price of the Goods will be charged by the Company and the Business Customer will forthwith pay to the Company:
7.2.1. the amount of any difference between the price of the Goods arising from the application of MBP and the full price of the Goods; and
7.2.2. any costs imposed on the Company including, without limitation, costs relating to compliance and verification under this Clause 7.
8.1. The Company does not supply goods on a trial basis and Customers are responsible for verifying suitability and compatibility of Goods BEFORE purchasing.
8.2. Further information on returns (including in relation to the Distance Selling Regulations) may be obtained by reviewing the Returns Policy. The Returns Policy is incorporated into these Conditions by reference and shall be complied with by the Company and the Customer. In the case of any inconsistency between these Conditions and the Returns Policy, the terms of these Conditions shall prevail.
8.3. The Customer shall ensure that:
8.3.1. all RMA claims are validly made:
8.3.2. no Goods returned to the Company are damaged;
8.3.3. all serial numbers of Goods are recorded where applicable. Returned
9. RISK AND TITLE
9.1. The Goods are at the Customer's risk from the time of delivery.
9.2. Title to the Goods will pass to the Customer once payment has been received, in full, by the Company. In the event that Goods are passed or sold to a third party by the Customer, the Company's title rights remain protected, until such time full payment has been received by the Company. This condition merely reserves the title on such Goods for the benefit of the Company; it does not impose a charge on the Goods.
9.3. Payment referred to in Clause 9.2 includes payment of the Goods as well as all other sums which are or which become due to the Company from the Customer, on any account.
9.4. The Company shall be entitled to recover payment for the Goods even though title of any of the Goods has not passed from the Company.
9.5. Until title has passed to the Customer, the Customer must:
9.5.1. store the Goods (at no cost to the Company) separately from all other goods and Goods of any third party in such a way that they are readily identifiable as the Company's property. goods must be un-used, correctly packed and carraige paid. The Company reserves the right to recover any costs due to damage.
9.5.2. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods, maintain the Goods in satisfactory condition and where the Customer is a Business Customer, they shall keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. At the Company's request, the Business Customer agrees to produce the relevant policy of insurance to the Company.
9.5.3. where the Customer is a Business Customer, they shall hold the proceeds of the insurance referred to in Clause 9.5.2 on trust for the Company and not mix them with any other money, nor pay the proceeds into a bank account that is overdrawn.
9.6. The Business Customer's right to possession of the Goods will terminate if:-
9.6.1. the Business Customer has a bankruptcy order made against them or makes an arrangement or composition with their creditors or otherwise take the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convene a meeting of creditors (whether formal or informal) or enter into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or have a received and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for their winding up or for the granting of an administration order in respect of them, or any proceedings are commenced relating to their insolvency or possible insolvency; or
9.6.2. The Business Customer suffers or allows any execution, whether legal or equitable, to be levied on their property or obtained against them or they are unable to pay their debts within the meaning of Section 123 of the Insolvency Act 1986 or they cease to trade; or
9.6.3. The Business Customer encumbers in any way charges of the Goods which are the subject of these Conditions.
10. LIMITATION OF LIABILITY
10.1. All warranties, conditions and other terms implied by statute or common law (except for the conditions implied by Section 12 of the Sale of Goods Act 1979 but subject always to the provisions of clause 12.2) are, to the fullest extent permitted by law, excluded from the Contract.
10.2. Nothing in these Conditions exclude or limit the liability of the Company for fraudulent misrepresentation or for any death or personal injury caused by the Company's negligence or any statutory rights which are not permitted to be excluded by law.
10.3. THE CUSTOMER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSES 10.4 AND 10.4.5
10.4. Subject to Clause 10.1 and 10.2, the Company will not be liable to the Customer in contract, tort (including but not limited to negligence), misrepresentation or otherwise for any:
10.4.1. economic loss of any kind (including but not limited to loss of use, profit, anticipated profit, business, contracts, overhead recovery, machining costs, revenue or anticipated savings);
10.4.2. any damage to the Customer's reputation or goodwill;
10.4.3. any product recall or business interruption costs;
10.4.4. any loss arising from any downtime of the Company's information technology systems; or
10.4.5. any other special, indirect or consequential loss or damage (even if the Company has been advised of such loss or damage) arising out of or in connection with the Contract.
10.5. Subject to the provisions of Clauses 10.1, 10.2 and 10.4, the Company's total liability in contract, tort (including but not limited to negligence), misrepresentation or otherwise arising out of or in connection with this Contract will be limited to the Contract price.
10.6. The provisions of this Clause 10 shall survive the termination or expiry (for whatever reason) of this Contract.
10.7. THE PRICES CHARGED FOR THE GOODS ARE BASED STRICTLY ON THE UNDERSTANDING OF ACCEPTANCE BY THE CUSTOMER OF THE PROVISIONS IN THE CONTRACT FOR THE LIMITATION OF THE COMPANY'S LIABILITY. SHOULD THE CUSTOMER REQUIRE THE COMPANY TO ACCEPT ADDITIONAL LIABILITY THIS MAY BE DISCUSSED BETWEEN THE PARTIES AND THE PRICE INCREASED ACCORDINGLY.
11. ERRORS & OMISSIONS
11.1. Whilst the Company makes every effort to ensure all prices and descriptions quoted by it are precise and accurate, on occasions where an error may occur, the Company is entitled to rescind any Contract, notwithstanding that is may have already accepted the Customer's order. The Company's liability will then be limited to the return of any money the Customer has paid relating to that order.
12. DATA PROTECTION AND PRIVACY AND SECURITY POLICY
12.1. The Company will take all reasonable precautions to keep the details of orders and payments secure. The Company will adhere to the principles of the Data Protection Act 1988 to uphold our Customer's privacy and protect the personal data provided by the Customer.
12.2. The Customer accepts and acknowledges that it has read the Company's Privacy and Security Policy, which shall apply to all dealings between the Company and the Customer.
13.1. The Customer will not without the prior written consent of the Company assign or transfer any Contract or any part of it to any other person.
13.2. Each right or remedy of the Company under these Conditions is without prejudice to any other right or remedy which the Company may have under these Conditions or otherwise.
13.3. The Company reserves the right to set-off for Account Customers, so that monies owed to the Company by the Account Customer can be off-set against any monies owed by the Company to the Account Customer.
13.4. Any notice or other document to be served under the Contract must be in writing and may be delivered or sent by prepaid first class post or facsimile transmission. Any notice or document shall be deemed served, if delivered at the time of delivery, if posted, 48 hours after posting and if sent by facsimile transmission, at the time of transmission (provided that a valid transmission report can be produced).
13.5. 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, unenforceable or unreasonable it will, to the extent of such illegality, invalidity, voidness, 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.
13.6. Failure or delay by either party in exercising any right or remedy provided by the Contract or by law will not be construed as a waiver of such right or remedy or a waiver of any other right or remedy.
13.7. Any waiver by either party of any breach of, or any default under, any provision of the Contract by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.8. A person who is not a party to the Contract will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. This clause 13.8 does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that act.
13.9. The Customer agrees that it will have no remedy in respect of any untrue statement innocently or negligently made by or on behalf of the Company prior to the Contract upon which the Customer relied in entering into the Contract whether such statement was made orally or in writing.
13.10. The Contract will be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.