Terms and Conditions of Sale
Please read the following terms and conditions carefully. We draw your attention to your rights of return under clause 7, and the limits to our liability in clause 11, of these Conditions.
In these Conditions ‘the Company’ shall mean B.E.S. Limited whose registered company number is 1202345 and whose registered office is situate at Regent House, Bath Avenue, Wolverhampton WV1 4EG and ‘Goods’ shall mean and include goods or any part thereof of any description to be supplied as described on the Company’s website and in the Company’s catalogue.
The Goods are offered by the Company only to Customers (those that purchase Goods from the Company) in the United Kingdom, and the Customer confirms that he is habitually resident or has a seat of business in such country. The Company reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
1. FORMATION OF CONTRACT
1.1 All quotations, offers and tenders are made and all orders are accepted subject to these Conditions except as otherwise provided in these Conditions. All other terms, conditions or warranties whatsoever are excluded from any contract between the Company and any Customer unless expressly accepted in writing by a board director of the Company, provided that nothing in any such contract shall restrict or exclude liability for death or personal injury caused by the negligence of the Company or affect the statutory rights of a Customer dealing as a Consumer (anyone who acts outside the course of their business, trade or profession).
1.2 Quotations, offers and tenders issued by the Company are not offers capable of acceptance so as to form a binding contract. An order placed by the Customer with the Company whether via the Company’s website (www.bes.co.uk), catalogue or otherwise will be construed as an offer to purchase the Goods from the Company. The processing of a Customer’s payment and acknowledgement of an order will not constitute legal acceptance of the order. It is at the Company’s discretion whether to accept the Customer’s offer. The despatch by the Company of all or part of the order placed will be construed as acceptance by the Company of all or part as the case may be of the Customer’s offer to purchase.
1.3 In the event of a conflict between these Conditions and the Company’s express terms of any quotation, offer, tender and/or order acknowledgement, then such express terms shall prevail.
1.4 Quotations, offers and tenders issued by the Company are for the whole of the Goods referred to in them and the Company reserves the right to refuse acceptance of any order which relates to only part of the Goods forming the subject of a quotation, offer or tender.
1.5 If any non-fraudulent statement or representation has been made to the Customer by the Company, or its employees, officers or agents upon which the Customer relies (other than in the document(s) enclosed with the Company’s quotation or acknowledgement of order) then the Customer must set out that statement or representation in a document to be attached to or endorsed on the order. In any such case the Company may confirm, reject or clarify the point and submit a new quotation and the Customer shall only be entitled to rely on any such statement or representation if the statement or representation is attached or endorsed on the Customer’s order and then only if the Company subsequently confirms in writing to the Customer that the Customer is entitled to rely on the statement or representation. Under no circumstances shall the Company be responsible or held liable in respect of any statement or representation relied upon by the Customer which is not attached to or endorsed on the order and subsequently confirmed in writing by the Company.
2.1 Unless otherwise agreed by the Company in writing, all prices are exclusive of VAT. On an order for despatch to a postal address within the United Kingdom by the Company’s usual means of carriage, carriage will be paid by the Company provided that the order has a value of over £40 (excluding VAT) and that it is sent in one consignment. Orders of £40 and under (excluding VAT) will incur a delivery charge at the rate for the time being in force as advertised on the Company’s website or in its then current catalogue or in any other then current literature produced by the Company.
2.2 Where, at the Customer’s request, orders are forwarded by any means involving a higher carriage charge than would be incurred by use of the Company’s usual means of carriage, then the additional charge will be paid by the Customer.
2.3 Quoted prices are subject to fluctuation at any time for any reason, including changes in commodity prices, currency exchange rate fluctuations, supplier price increases and changes in market conditions. Where a price differs from that quoted in the Company’s then current catalogue or on its website, the Company will contact the Customer by e-mail, telephone, post or other appropriate method to inform the Customer of the revised price before despatching the Goods. The Customer may then cancel the offer to purchase, or confirm the offer to purchase at the revised price if one is offered by the Company. The Company also reserves the right to make an additional charge to cover any increase in transport costs occurring before the date of delivery.
2.4 In the event of any alteration being requested by the Customer in design or specification and agreed by the Company, the Company shall be entitled to make an adjustment to the quoted price fairly reflecting such alteration.
3.1 Unless otherwise agreed by the Company in writing, payment shall be due and payable at the point at which the Goods are ordered by the Customer whether through the website, from the catalogue or otherwise.
3.2 Unless otherwise agreed by the Company in writing, payment for the price of the Goods and any delivery charges must be received in full by the Company prior to an order being processed by the Company.
3.3 No disputes arising under the contract or delays beyond the reasonable control of the Company shall interfere with prompt payment in full by the Customer.
3.4 In the event of default in payment by the Customer, the Company shall be entitled (without prejudice to any other right or remedy) to do any or all of the following:
3.4.1 to suspend all further deliveries under the contract or any other contracts between the Company and the Customer then current, without notice;
3.4.2 to charge interest on any amount outstanding at the rate of 8% per annum above the Base Rate of the Bank of England, such interest being charged as a separate continuing obligation not merging with any judgment;
3.4.3 to serve notice on the Customer requiring immediate payment for all Goods supplied by the Company under the contract and all other contracts with the Customer whether or not payment is otherwise due or invoiced;
3.4.4 to deduct from any monies due or to become due to the Customer any monies due to the Company or any associated or subsidiary company of the Company from the Customer under the contract and/or any other contract; and/or
3.4.5 to sue for the price of the Goods even though title in the Goods may not have passed to the Customer.
3.5 Should an error occur in the pricing of the Goods by the Company, the Company will not be obliged to supply the Goods to the Customer at the incorrect price. The Company reserves the right to correct errors in pricing and descriptions of the Goods from time to time.
3.6 If any Goods are purchased at an incorrect price, the Company may cancel the contract, whereupon the Customer shall return the Goods in accordance with the instructions of the Company and at the Company’s cost, following which the Company shall refund the Customer the price paid for the Goods.
4.1 Time for delivery is given as accurately at possible but is not guaranteed. The Customer shall have no right to damages or to cancel any contract for failure for any cause to meet any delivery time stated nor shall the Customer be entitled to make, or to purport to make, time for delivery of the essence of the contract.
4.2 The date of delivery shall in every case be dependant upon prompt receipt of all necessary information, final instructions or approvals from the Customer. Any delays or alterations by the Customer in design, specifications or quantities required may result in delay in delivery.
4.3 Failure by the Customer to take delivery of or to make payment in respect of any one or more instalments of Goods delivered under the contract shall entitle the Company to treat the whole or part of the contract as repudiated by the Customer.
4.4 The Company will endeavour to comply with reasonable requests by the Customer for postponement of delivery but shall be under no obligation to do so. Where delivery is postponed otherwise than due to the default of the Company, the Customer shall pay all costs and expenses, including a reasonable charge for storage and transportation so occasioned, and payment for the Goods shall be made in accordance with these Conditions.
4.5 The Company will not be liable for unloading the Goods at the designated point of delivery or for placing them in position on site.
4.6 The Company shall have the right to make delivery by instalments and in that event each delivery shall stand as a separate contract and failure to make any instalment delivery shall not entitle the Customer to repudiate the whole contract.
4.7 Unless otherwise agreed in writing, whether or not the Company shall arrange transport, delivery shall be effected when the Goods leave the premises of the Company or those of the suppliers to the Company where the Goods are despatched direct from such suppliers’ premises to the Customer.
4.8 Any delivery note or notes presented by or on behalf of the Company and/or its carrier must be signed by or on behalf of the Customer on receipt of the Goods.
5.1 The Company may at its discretion submit a sample to the Customer for approval before executing the bulk of the order which will only be commenced on receipt by the Company of such approval in writing. All Goods in respect of which a sample is so approved shall be deemed to have been satisfactorily tested by the Customer and to be suitable for the purposes for which the Customer requires them.
5.2 Notwithstanding that samples may be or have been submitted by the Company, the sale to the Customer is not and shall not be deemed to be a sale by sample for the purposes of Section 15 of the Sale of Goods Act 1979. Any samples submitted to the Customer are intended to indicate only the substance and the general character of the materials and the Customer shall have no claim if the colour or composition of the bulk supplied fails to correspond with the sample in such respect unless the particular requirement is specified by the Customer and accepted by the Company in writing.
6. RISK AND TITLE
6.1 Risk shall pass to the Customer so that the Customer is responsible for all loss, damage or deterioration to the Goods:
6.1.1 if the Company arranges transport for the Goods, at the time when the Goods arrive at the designated place of delivery, or
6.1.2 in all other circumstances, at the time when the Goods leave the premises of the Company.
6.2 Title to the Goods shall only pass to the Customer upon the happening of any one of the following events:-
6.2.1 the Customer has paid to the Company all sums (including any default interest) due from the Customer to the Company under the contract and under all other contracts between the Company and the Customer including (for avoidance of doubt) any sums due under contracts made after the contract whether or not the same are immediately payable and under all contracts between the Company and any associated or subsidiary company of the Customer or any company under the ultimate control of the same parent company as has ultimate control of the Customer; or
6.2.2 when the Company serves on the Customer notice in writing specifying that title in the Goods has passed.
6.3 The Company may recover Goods in respect of which title has not passed to the Customer at any time and the Customer hereby licenses the Company, its officers, employees and agents to enter upon any premises of the Customer with or without vehicles for the purpose either of satisfying itself that clause 6.4 below is being complied with by the Customer or of recovering any Goods in respect of which title has not passed to the Customer.
6.4 Until title has passed to the Customer pursuant to these Conditions it shall possess the Goods as fiduciary agent and bailee of the Company. If the Company so requires, the Customer shall store the Goods separately from other goods and shall ensure that they are clearly identifiable as belonging to the Company. During such time as the Customer possesses the Goods with the Company’s consent, the Customer may in the normal course of its business sell or hire the Goods as principal but without committing the Company to any liability to the person dealing with the Customer.
7. RETURNS, SHORTAGES AND NON-DELIVERY
7.1 Cancellation of the contract by a Customer will only be agreed to by the Company on condition that all costs and expenses incurred by the Company up to the time of cancellation and all loss of profits and other loss or damage resulting to the Company by reason of such cancellation will be paid forthwith by the Customer to the Company.
7.2 Within 30 days of delivery of the Goods, the Customer may return the Goods to the Company, for any reason, at the cost of the Company, except in the case of Goods specially purchased by the Company for the Customer where the Company is not itself entitled to return the Goods to its supplier for a full refund.
7.3 All Goods that are returned to the Company must be in the same condition they were in as at the point they were dispatched to the Customer by the Company and must be returned in the same packaging materials in which the Goods were delivered to the Customer.
7.4 All Goods must be returned with all components and also any promotional items received, including free gifts.
7.5 Subject to the above conditions, the Company will reimburse the cost of the Goods as soon as reasonably possible after the Goods are received and in any event within 30 days of that date, or replace the Goods if required by the Customer and agreed by the Company.
7.6 If the Goods are faulty or damaged, the Customer shall notify the Company within three working days of delivery. The Company may at its discretion either:
7.6.1 offer to replace or repair any Goods that are damaged or defective upon delivery; or
7.6.2 cancel the contract (or part of the contract affected) and refund to the Customer the amount paid for the Goods in question.
7.7 The right to return the Goods supplied under the contract will expire after the 30 day period referred to in clause 7.2.
7.8 The Customer shall have no claim for shortages in a delivered consignment unless the Company is notified in writing within three working days of delivery. Non-delivery of a whole consignment must be advised within seven days of the notified date of despatch.
7.9 If a complaint is not made to the Company as provided in clause 7.8 then the Goods shall be deemed to have been delivered in all respects in accordance with the contract and the Customer shall be bound to pay for the same accordingly.
8. SPECIFICATION, INFORMATION AND USE
8.1 The Company reserves the right to alter or change the dimensions or composition of the Goods to conform to applicable standards or laws or otherwise within reasonable limits having regard to the nature of the Goods.
8.2 The information contained in any advertising, sales and technical literature issued by the Company or published on its website, including but not limited to any illustrations, performance details, examples of installations and methods of assembly and all other technical data in such literature, are provided for general guidance only. No such information or data shall form part of the contract unless the Customer shall have complied with clause 1.5 relating to statements and representations and the Company shall have given the written confirmation referred to in that clause.
8.3 The Customer warrants that the Goods will be used in such manner and for such purposes only as are permitted by the laws of England and Wales or such other country in which the Goods are to be used and in accordance with any instructions provided by the Company (or other third party) with the Goods. The Customer hereby indemnifies the Company against any liability to third parties to which the Company may become subject in relation to use of the Goods supplied to the Customer by the Company for any purposes or in any manner other than as is expressly permitted by the contract.
9.1 The Company warrants that on delivery the Goods shall:
9.1.1 conform with their description;
9.1.2 be free from material defects in design, material and workmanship; and
9.1.3 be fit for any purpose held out by the Company.
9.2 Subject to clause 9.3, if:
(a) the Customer gives notice in writing to the Company within 30 days of delivery that some or all of the Goods do not comply with the conditions set out in clause 9.1;
(b) the Company is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost, then the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
9.3 The Company shall not be liable for the Goods’ failure to comply with the conditions set out in clause 9.1 in any of the following events:
9.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 9.2
9.3.2 the defect arises because the Customer failed to follow the Company’s or the manufacturer’s instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
9.3.3 the Customer alters or attempts to repair such Goods without the written consent of the Company;
9.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
9.3.5 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
9.4 Except as provided in this clause 9, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the conditions set out in clause 9.1.
9.5 These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
9.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are expressly excluded from the contract for Trade Customers (those that purchase Goods from the Company for and on behalf of their business, trade or profession) and are, to the fullest extent permitted by law, excluded from the contract for all other Customers.
10. MANUFACTURER’S WARRANTIES AND GUARANTEES
10.1 If Goods are sold with a manufacturer’s warranty, guarantee or similar assurance, the Company does not have any responsibility or liability under or in connection with any such warranty, guarantee or assurance.
10.2 Any manufacturer’s warranty, guarantee or similar assurance applies in addition to the Customer’s legal rights if the Customer is dealing as a Consumer.
11. EXCLUSION OF LIABILITY
11.1 The Company shall not be liable in respect of claims arising by reason of death or personal injury except in so far as the death or injury is attributable to a failure by the Company to exercise reasonable care.
11.2 Under no circumstances whatever shall the Company be liable for losses special to the particular circumstances of the Customer, indirect losses, work required in connection with the removal of defective Goods and the installation of repaired or substituted Goods, loss of profits, damage to property or wasted expenditure.
11.3 Without prejudice to clauses 11.1 and 11.2, where Goods are supplied for the purpose of a business, the Company’s liability, whether in respect of one claim or the aggregate of various claims (other than claims for death or personal injury to the extent that the same is caused by a failure of the Company to take reasonable care), shall not exceed £250,000 and the Customer agrees to insure adequately to cover claims in excess of such amount.
11.4 Trade Customers acknowledge that these Conditions, together only with any other terms and conditions expressly agreed by the Company in writing, constitute the entire and only agreement between the parties.
11.5 Trade Customers shall have no right to compensation from the Company (whether in contract, tort (including negligence), breach of statutory duty or otherwise), other than any refund the Company may provide under these Conditions or otherwise at its discretion.
11.6 The Company will not be responsible to Trade Customers or, in the event that work is undertaken for another person, to any other person, for the use or installation of any Goods by the Trade Customer. Accordingly, the Trade Customer agrees to hold the Company harmless from and indemnify the Company against any liability associated with, any claim or allegation that the Company is responsible for any failings in the installation or use of Goods supplied.
12. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY RIGHTS
12.1 All drawings, documents, confidential records, computer software, catalogues and other information supplied by the Company whether produced by itself or a third party, are supplied on the express understanding that copyright is reserved to the Company (or the third party) and that the Customer will not without the written consent of the Company either give away, loan, exhibit or sell any such drawings, documents, records, software or other information or extracts from them or copies of them or use them in any way except in connection with the Goods in respect of which they are issued. In addition, any design right or copyright created in relation to the Goods will vest in the Company where the Goods are commissioned by the Customer, whether or not for a separate fee.
12.2 All claims for alleged infringement in respect of patents, trade marks, registered design, design right or copyright received by the Customer must be notified immediately to the Company so that the Company can be kept fully informed of the conduct of such claims. If requested by the Company, the Company shall be entitled to have conduct of any proceedings relating to any such claim in such manner as the Company thinks fit and the Customer will provide to the Company such reasonable assistance as the Company may request. The cost of any such proceedings will be borne by the Company. If any allegation shall be made against the Customer to the effect that the supply of the Goods infringes the intellectual property rights of any third party, or if the Company has reason to believe that any such allegation is likely to be made, the Company may at its option and expense modify or replace the Goods so as to avoid the infringement (but without adversely effecting the overall performance of the Goods), or obtain for the benefit of the Customer the right to continue to use the Goods, or repurchase the Goods at the contract price as reduced by a reasonable provision for depreciation. If the Company pursues any of such options, the Customer will have no rights or remedies against the Company arising directly or indirectly out of the alleged infringement.
12.3 The Company gives no assurance or guarantee whatsoever that the sale or use of the Goods will not infringe the patent, copyright or other intellectual property rights of any person, firm or company.
If the Customer shall become bankrupt or under the provisions of Section 123 of the Insolvency Act 1986 is deemed to be unable to pay its debts or compounds with creditors or in the event of a resolution being passed or proceedings commenced for the administration or liquidation of the Customer (other than for a voluntary solvent winding up for the purposes of reconstruction or amalgamation) or if an Administrator, Receiver or Manager is appointed of all or any part of its assets or undertaking, the Company shall be entitled to cancel the contract in whole or in part by notice in writing to the Customer without prejudice to any other right or remedy available to the Company.
14. AGE-RESTRICTED GOODS
Where a contract is made for age-restricted Goods such as solvents, axes, knives and knife blades, the Customer confirms that they are over the age of 18 and that (where applicable) delivery will be accepted by a person over the age of 18. The Company reserves the right to cancel the contract if it reasonably believes that the Customer does not meet the age restrictions for any of the Goods ordered.
15. FORCE MAJEURE
The Company shall be under no liability for any failure to perform any of its obligations under the contract if and to the extent that the failure is caused by an act of God, governmental restriction, condition or control or by reason of any act done or not done pursuant to a trade mark dispute, shortages of labour or materials or breakdown of machinery or any other matter (whether or not similar to the foregoing) outside the control of the Company.
16. CONSUMER PROTECTION ACT 1987 (“the Act”)
16.1 In circumstances where the Company supplies parts or products to the Customer for incorporation with, or into, or use ancillary to, any product to be produced, manufactured, processed or supplied by the Customer or a third party then:
16.1.1 the Customer shall immediately on demand produce for inspection by the Company copies of all written instructions, information and warnings to be supplied by the Customer in relation to the said product, provided nevertheless that such inspection or right to inspect shall not of itself constitute acceptance or approval on the part of the Company of such instructions, information or warnings;
16.1.2 the Customer shall indemnify, reimburse and compensate the Company for all losses and damages (including costs, expenses and charges for legal actions in which the Company may be involved) that the Company may incur or have to bear in the event that any claim or claims are made against the Company pursuant to the Act or otherwise relating to the said product of the Customer in circumstances in which the part of product supplied by the Company was
(i) not the defective part of the said product, or
(ii) was only rendered the defective part or became a defective product by reason of actions or omissions of the Customer (including without limitation the supply of defective free issue materials), or
(iii) only rendered the defective part or became a defective product by reason of instructions, information or warnings given by the Customer or other supplier
16.2 The Customer hereby acknowledges that it is under a duty to pass on to its customers (where appropriate) all instructions, information and warnings supplied to it by the Company with the Goods.
The contract is made between the Company and the Customer as principals and under no circumstances shall the Customer assign the benefit or burden of it without the prior written consent of the Company. The Company shall be entitled to assign or subcontract the whole or part of its obligations under the contract and to assign its interest in the contract.
In the event of any provision of these Conditions being or becoming void in whole or in part, the other provisions of these Conditions shall remain fully valid and enforceable and the void provisions shall, where appropriate, be replaced by other provisions corresponding as closely as possible with the void provisions in accordance with the meaning and purposes of these Conditions.
The contract shall be governed and interpreted exclusively according to the laws of England and Wales and shall be subject to the non-exclusive jurisdiction of the courts of England and Wales only.
WHERE THE CUSTOMER UNDER THE CONTRACT (NOT BEING A CONTRACT FOR THE INTERNATIONAL SALE OF GOODS) IS A CONSUMER WITHIN THE MEANING OF SECTION 2 OF THE CONSUMER RIGHTS ACT 2015 THEN NOTHING CONTAINED IN ANY OF THE ABOVE CONDITIONS SHALL RESTRICT OR AFFECT THE STATUTORY RIGHTS OF THE CUSTOMER.