Terms & Conditions for purchasing via Primus.

Goods are supplied subject to the following conditions:

1                      Definitions and interpretation

1.1                  In these Conditions the following definitions apply:

Business Day

means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business ;

Conditions

means the Supplier’s terms and conditions of sale set out in this document;

Contract

means the agreement between the Supplier and the Customer for the sale and purchase of Goods incorporating these Conditions and the Order;

Control

means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company;

Customer

means the person who purchases the Goods from the Supplier and whose details are set out in the Order;

Delivery Location

means the address for delivery of the Goods set out in the Order or otherwise agreed with the Customer;

Force Majeure

means an event or sequence of events beyond a party's reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required for performance of the Contract; strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving the Supplier’s or its suppliers workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;

Goods

means the goods  (or any part of them) set out in the Order  and to be supplied by the Supplier to the Customer;

Order

means an order (or otherwise an offer to make a purchase)  for the Goods from the Supplier placed by the Customer by telephone or set out in the Customer’s purchase order form or in the Customer’s acceptance of the Supplier’s quotation;

Price

has the meaning given in clause 5.1;

Specification

means the description, any samples, or specification of the Goods set out or referred to in the Order or otherwise agreed by the Customer and the Supplier;

Supplier

means A. Perry  Ltd (company number 0363827)  whose registered office is at Doulton Road, Cradley Heath, West Midlands, B64 5QW;

 VAT

means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods;

Website;

means the website (www.perrytade.co.uk) that is operated by or on behalf of the Supplier.

 

1.2                  In these Conditions, unless the context requires otherwise:

1.2.1               any clause or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;

1.2.2               a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;

1.2.3               a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

1.2.4               a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

1.2.5               a reference to a gender includes each other gender;

1.2.6               words in the singular include the plural and vice versa;

1.2.7               any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

1.2.8               a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;

1.2.9               a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under the Contract; and

1.2.10            a reference to legislation includes all subordinate legislation made  under that legislation.

2                      Application of these conditions

2.1                  These Conditions apply to and form part of the Contract between the Supplier and the Customer to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. They supersede any previously issued terms and conditions of purchase or supply .

2.2                  No terms or conditions endorsed on, delivered with, or contained in the Customer's purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.

2.3                  No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Supplier.

3                      Basis of Contract

3.1                  A quotation for the Goods given by the Supplier shall not constitute an offer to supply Goods. A quotation shall only be valid for a period of 5 Business Days from its date of issue.

3.2                  Each Order by the Customer to the Supplier shall be an offer to purchase Goods subject to these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.

3.3                  The Supplier may accept or reject an Order at its discretion. If the Supplier is unable to accept an Order, it shall notify the Customer as soon as reasonably practicable.

3.4                  The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order or otherwise confirms in writing that the Order has been placed and processed, at which point the Contract shall come into existence.

3.5                  Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are illustrative only and do not form part of the Contract.

4                      Goods

4.1                  The Goods are described in the Supplier’s catalogue or brochure as modified by any applicable Specification.

4.2                  The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.

5                      Price and Payment

5.1                  The price for the Goods shall be the price advised by the Supplier (including on its Website)  before the Order is made or otherwise set out in the Order. The Supplier will confirm the price of the Goods in writing before the Order is made.

5.2                  The price of the Goods is exclusive of:

5.2.1               delivery charges (unless expressly stated otherwise) ; and

5.2.2               VAT (or equivalent sales tax).

5.3                  Delivery charges  vary depending on the Goods ordered, the Delivery Location and the delivery method selected.  Wherever possible the Customer will be notified of the delivery charges applicable to the Goods being delivered at the time the Order is made which the Customer will pay on receipt of an invoice.

5.4                  The Customer shall pay any applicable VAT (or equivalent sales tax) at the prevailing rate to the Supplier on receipt of a valid VAT invoice.

5.5                  The Supplier may increase the  price of the Goods at any time by giving the Customer not less than 5 Business Days’ notice in writing before delivery to reflect any increase in the cost of the Goods that is due to:

5.5.1               any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

5.5.2               any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification;

5.5.3               any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

5.6                  The Supplier may invoice the Customer for the Goods at any time  on or after Delivery.

5.7                  The Customer shall pay all invoices to the bank account nominated by the Supplier in full without deduction or set-off, in full and cleared funds by the end of the month following the month the invoice was dated.

5.8                  Time of payment is of the essence.  If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment the Supplier may, without limiting its other rights, charge interest on such sums at 4%  per annum above the base rate of  Barclays Bank PLC  from time to time. Such interest  shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.

6                      Credit Limit

The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.

7                      Delivery

7.1                   The Supplier shall either:

7.1.1                deliver the Good to the location set out in the Order or such other location as the parties may agree: or

7.1.2               if so specified in the Order,  make the Goods available for collection by the Customer at the Supplier's premises set out in the Order in which case the  Customer shall collect the Goods within the period specified in the Order.

7.2                  The Goods shall be deemed delivered:

7.2.1               if delivered by the Supplier under clause 7.1.1, on completion of unloading of the Goods at the Delivery Location; or

7.2.2               if collected by the Customer under clause 7.1.2 , when the Supplier makes the Goods available for collection at the Supplier's premises.

7.3                  The Customer shall not be entitled to reject any delivery of Goods on the basis that an incorrect volume of Goods has been supplied provided the volumes are within the tolerances (if any) set out in the Order.

7.4                  The Goods may be delivered by instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

7.5                  Delivery of the Goods shall be accompanied by a delivery note stating:

7.5.1               the date of the Order, the Customer account number and Order reference;

7.5.2               the product numbers or code, type and quantity of Goods in the consignment; and

7.5.3               if the Goods are being delivered by instalments the outstanding balance of Goods remaining to be delivered.

7.6                  Time of delivery is not of the essence. The Supplier shall use its reasonable endeavours to meet delivery dates but such dates are approximate only.

7.7                  If the Supplier requires the Customer to return any packaging materials to the Supplier, that fact will be stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense

7.8                  If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall not be liable for any delay in or failure of delivery caused by:

7.8.1               the Customer's failure to: (i) make the Delivery  Location available, (ii) prepare the Delivery Location as required for delivery, or (iii) provide the Supplier with adequate instructions for delivery or  any other instructions that are relevant to the supply of the Goods;

7.8.2               the Customer's failure to collect the Goods from the Supplier's premises; or

7.8.3               Force Majeure.

7.9                  If the Customer fails to take or  accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready:

7.9.1               delivery of the Goods shall be deemed to have completed  at 9.00am on the third Business Day after the day on which the Supplier notified the Customer the Goods were ready; and

7.9.2                 the Supplier shall store and insure the Goods pending delivery and charge  the Customer for all  reasonable related costs and expenses (including  storage and insurance) relating thereto.

7.10                If five Business Days following the due date for delivery or collection of the Goods, the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of the Goods. The Supplier shall:

7.10.1            charge the Customer reasonable storage charges and costs of resale;

7.10.2            charge the Customer for its reasonable costs of disposing of  or recycling any Goods which the Supplier is not able to re-sell; and

7.10.3            charge the Customer for any shortfall of the resale price below the Price payable by the Customer for the Goods

and all such charges are payable by the Customer immediately on receipt of the Supplier’s invoice.

8                      Title and Risk

8.1                  Risk in the Goods shall pass to the Customer on Delivery

8.2                  Title to the Goods shall pass to the Customer once the Supplier has received payment in full and cleared funds for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due in which case title to the Goods shall pass at the time of payment of all such sums.

8.3                  Until title to the Goods has passed to the Customer, the Customer shall:

8.3.1               hold the Goods as bailee for the Supplier;

8.3.2               store the Goods separately from all other goods or  material in the Customer's possession so that they remain readily identifiable as the Supplier’s property;

8.3.3               take all reasonable care of the Goods and  not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

8.3.4               maintain the Goods in satisfactory condition and keep them insured against all risks for an amount at least equal to their Price;

8.3.5               inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in clauses 13.1 or 13.2 ; and

8.3.6               on reasonable notice permit the Supplier to inspect the Goods during the Customer’s normal business hours and provide the Supplier with such information concerning the Goods as the Supplier may request from time to time.

8.4                  Notwithstanding clause 8.3, the Customer may use or resell the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clauses 13.1 or 13.2  has occurred or is likely to occur.

8.5                  If the Customer resells the Goods in accordance with clause 8.4, title to the Goods shall pass to the Customer immediately prior to the resale.

8.6                  If, at any time before title to the Goods has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses 13.1 or 13.2, the Supplier may at any time (and without limiting any other right or remedy which the Supplier may have):

8.6.1               require the Customer at the Customer's expense to deliver up to the Supplier  all  Goods in its possession that have not been resold or irrevocably incorporated into another product; and

8.6.2               if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.

9                      Warranty

9.1                  The Supplier warrants that the Goods shall, for a period of three months from Delivery (the Warranty Period):

9.1.1               conform in all material respects with their description and any applicable Specification;

9.1.2               be free from material defects in design, material and workmanship; and

9.1.3               be of satisfactory quality within the meaning of the Sale of Goods Act 1979.

9.2                  The Customer warrants that it has provided the Supplier with all relevant, full and accurate information as to the Customer’s business and needs.

9.3                  The Supplier shall, at its option, repair, replace, or refund the Price of, any Goods that do not comply with clause 9.1, provided that the Customer:

9.3.1               serves a written notice on Supplier:

(a)                   during the Warranty Period in the case of defects discoverable by a physical inspection; or

(b)                   in the case of latent defects, within one month from the date on which Customer became aware (or should reasonably have become aware) of the defect;

9.3.2               provides the Supplier with sufficient information as to the nature and extent of the defects and the uses to which the Goods had been put prior to the defect arising;

9.3.3               gives the Supplier a reasonable opportunity to examine the defective Goods; and

9.3.4               returns the defective Goods to the Supplier at the  Customer's expense.

9.4                  The provisions of these Conditions, including the warranties set out in clause 9.1, shall apply to any Goods that are repaired or replaced with effect from Delivery of the repaired or replaced Goods.

9.5                  The Supplier shall not be liable for any failure of the Goods to comply with clause 9.1:

9.5.1               where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise in the normal course of use of the Goods;

9.5.2               to the extent caused by the Customer's failure to comply with the Supplier's instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;

9.5.3               to the extent caused by the Supplier following any specification or requirement of the Customer in relation to the Goods;

9.5.4               where the Customer modifies, alters or repairs any Goods without the Supplier's prior written consent or, having received such consent, not in accordance with the Supplier’s instructions;

9.5.5               where the Customer uses any of the Goods after notifying the Supplier that they do not comply with clause 9.1; or the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements

9.6                  Except as set out in this clause 9:

9.6.1               the Supplier gives no warranties and makes no representations in relation to the Goods; and

9.6.2               shall have no liability for their failure to comply with the warranty in clause 9.1,

and all warranties and conditions (including the conditions implied by ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.

10                    Indemnity

10.1                The Customer shall indemnify the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses which the Supplier may suffer or incur directly or indirectly from the Customer’s breach of any of its obligations under the Contract.

11                    Limitation of liability

11.1                The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.

11.2                Subject to clauses 11.5 and 11.6, the Supplier’s liability shall  be limited at is option either to supply replacement Goods (which will be supplied subject to these terms) or to refund the Price  paid by the Customer for the Goods.

11.3                Subject to clauses 11.5 and 11.6, the Supplier shall not be liable for consequential, indirect or special losses.

11.4                Subject to clauses 11.5 and 11.6, the Supplier shall not be liable (whether directly or indirectly)  for any loss of profit, loss of use, loss of production, loss of opportunity, loss of savings, discount or rebate (whether actual or anticipated, harm to reputation  or loss of goodwill. (whether actual or anticipated).

11.5                The limitations of liability set out in clauses 11.2 to 11.4 shall not apply in respect of any indemnities given by either party under the Contract.

11.6                Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:

11.6.1            death or personal injury caused by negligence;

11.6.2            fraud or fraudulent misrepresentation; or

11.6.3            any other losses which cannot be excluded or limited by applicable law.

12                    Force majeure

12.1                A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:

12.1.1            promptly notifies the other of the Force Majeure event and its expected duration; and

12.1.2            uses best endeavours to minimise the effects of that event.

12.2                If, due to Force Majeure, a party:

12.2.1            is or shall be unable to perform a material obligation; or

12.2.2            is delayed in or prevented from performing its obligations for a continuous period exceeding 14 days or total of more than 30 days in any consecutive period of 60 days;

the parties shall, within 30 days, renegotiate the Contract to achieve, as nearly as possible, the original commercial intent.

13                    Termination

13.1                Without limiting its other rights or remedies, the Supplier may terminate the Contract with at any time by giving notice in writing to the Customer if the Customer:

13.1.1            commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach 14 days of receiving written notice to do so;

13.1.2            suspends or  ceases to  carry on all or a significant part of its business, or indicates in any way that it intends to do so;

13.1.3            is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;

13.1.4            becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;

13.1.5            has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;

13.1.6            has a resolution passed for its winding up;

13.1.7            has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;

13.1.8            is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;

13.1.9            has a freezing order made against it;

13.1.10          is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;

13.1.11          is subject to any events or circumstances analogous to those in clauses 13.1.2 to 13.1.10 in any jurisdiction;

13.1.12          takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 13.1.2 to 13.1.11 including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.

13.2                Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect   by giving notice in writing to the Customer if:

13.2.1             the Customer fails to  pay any amount due under the Contract on the due date for payment; or

13.2.2            the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

13.3                Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clauses 13.1  to 13.2 or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

13.4                On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and any interest due.

13.5                Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.

13.6                Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect

14                    Notices

14.1                Any notice or other communication given by a party under  or in connection with the Contract shall be in writing and in English, addressed to the relevant party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.

14.2                A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission

14.3                This clause 14 does not apply to notices given in legal proceedings or arbitration.

15                    Cumulative remedies

The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.

16                    Time

Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Customer’s obligations only.

17                    Further assurance

The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.

18                    Entire agreement

18.1                The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, promises, assurances, warranties, representations, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

18.2                Each party acknowledges that it has not entered into the Contract  in reliance on, and shall have no remedies in respect of, any statement, representation, assurance or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.

18.3                Nothing in these Conditions purports to limit or exclude any liability for fraud.

19                    Variation

No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and is duly signed or executed by, or on behalf of, the Supplier.

20                    Assignment

20.1                The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

20.2                The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent.

21                    Set off

21.1                The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

22                    Severance

22.1                If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.

22.2                If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

23                    Waiver

23.1                No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

23.2                No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.

24                    Compliance with law

The Customer shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.

25                    Third party rights

A  person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.

26                    Governing law

The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

27                    Jurisdiction

The parties irrevocably agree that the courts of England and Wales shall have jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).

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