TERMS AND CONDITIONS OF SALE – BUSINESS TO BUSINESS Issue date: 10 May 2018
THE CUSTOMER’S ATTENTION IS DRAWN TO CLAUSES 3.6, 4.3, 4.7, 6.4, 6.5 AND 8 WHICH SET OUT THE LIMITATIONS ON THE SUPPLIER’S LIABILITY TO THE CUSTOMER.
In these conditions the following definitions apply:
Business Day: means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: means the terms and conditions set out in this document as amended from time to time.
Contract: means the contract between the Supplier and the Customer for the sale and purchase of the Product(s) in accordance with these Conditions, including but not limited to the Order, Order Confirmation and these Conditions.
Customer: means the person, firm, or company who purchases the Product(s) from the Supplier.
Delivery: means delivery of the Product(s), as confirmed in the Order Confirmation, by the Supplier (or his nominated carrier) to the Delivery Address.
Delivery Address: means the address chosen by the Customer for Delivery in the Order which is confirmed by the Supplier in the Order Confirmation.
Force Majeure Event: means an event beyond a party’s reasonable control.
Product(s): means the Product(s) (or any part of them) set out in the Order.
Order: means an order for the Product(s) submitted by the Customer via the Website.
Order Confirmation: means the written order confirmation sent primarily by email from the Supplier to the Customer confirming acceptance of the Order and confirming the Delivery Address and Delivery details. Where the order confirmation is not capable of being sent by email (including but not limited to circumstances where the Customer does not have an email address), the Supplier shall issue a written order confirmation, at the Suppliers sole discretion, by fax or by post (as applicable) or alternatively orally over the telephone.
Supplier: means Nightwatcher Limited, a company incorporated and registered in England and Wales with company number 10977098 with its registered office at 12 Ashley Road, Boscombe, Bournemouth, Dorset, BH1 4LQ. Nightwatcher Limited’s principal trading address is 21 Headlands Business Park, Ringwood, Hampshire, BH24 3PB.
Trade Credit Account: the trade credit account provided by the Supplier to the Customer (following a successful application process by the Customer), such Trade Credit Account being subject to the Terms and Conditions for use of Trade Credit Account provided previously by the Suppler to the Customer.
Trade Credit Account Log In: the log in details and online account for the Customer which is linked to the Trade Credit Account.
Website: means https://nightwatcher.co.uk.
In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes email and faxes.
- ACCEPTANCE OF ORDERS
2.1 The submission of an Order constitutes an offer by the Customer to purchase the Product(s) from the Supplier in accordance with these Conditions and at the price shown on the Website in respect of those Product(s) at the time of submission of the Order.
2.2 The Order shall only be deemed to be accepted by the Supplier upon the Supplier issuing an Order Confirmation, at which point the Contract shall come into existence. Where the Supplier is unable to accept the Order for any reason whatsoever, including but not limited to stock availability or manifest error in the advertised price of the Product(s), the Supplier shall notify the Customer by email, fax, post or orally over the telephone and shall refund any charges paid by the Customer at the time of submission of the Order in respect of the affected Product(s).
2.3 The Supplier providing any data, materials, requests for information or undertaking negotiations with the Customer shall not be deemed to constitute acceptance of an Order.
2.4 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues, brochures or on the Website are produced for the sole purpose of giving an approximate idea of the product(s) described in them and are for illustrative purposes only. They shall not form part of the Contract or have any contractual force in relation to the Product(s).
2.5 The Customer is responsible for ensuring that the contents of the Order and that the Delivery Address submitted by the Customer are complete and accurate.
2.6 Where the Customer wishes to make changes to an Order following receipt of an Order Confirmation, the Customer must contact the Supplier on email@example.com as soon as possible. If it is possible for the Supplier to make the changes to the Order, the Supplier shall notify the Customer in writing about any changes to the price of the Product(s), the timing of Delivery or anything else which may be affected as a result of the change to the Order. If the Supplier cannot make the change to the Order or the consequences of making the change are unacceptable to the Customer, the Customer may seek to terminate the Contract in accordance with clause 7.
2.7 The Supplier reserves the right to change any Product(s) to reflect changes in relevant laws and regulatory requirements and/or to implement minor technical adjustments and improvements, for example to address a security threat. These changes will not affect the Customer’s use of the Product(s).
2.8 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.9 No amendment to these Conditions or the Contract will be accepted by the Supplier unless specifically agreed to in writing and silence on the part of the Supplier shall not constitute a valid acceptance.
3.1 The price for the Product(s) will be the price shown on the Order Confirmation and will clearly state whether the price shown on the Order Confirmation is inclusive or exclusive of VAT.
3.2 The Supplier takes all reasonable care to ensure that the prices displayed for the Product(s) on the Website are correct. However, in the unlikely event that the price shown on the Website at the date the Order is submitted by the Customer is incorrect, the Supplier shall:
(a) where the Product(s)’ correct price as at the date of Order is lower than the price stated on the Website, the Supplier agrees only to charge the Customer the lower amount and shall refund or credit the difference in the price paid by the Customer at the time of submission of the Order and the correct price back to the Customer’s payment card or the Customer’s Trade Credit Account (as applicable);
(b) where the Product(s)’ correct price as at the date of the Order is higher than the price stated on the Website, the Supplier shall contact the Customer by email, fax, post or orally over the telephone for the Customer’s instructions before an Order Confirmation is issued.
3.3 If the Supplier issues an Order Confirmation where a pricing error is obvious and unmistakable and could reasonably have been recognised by the Customer as a mispricing, the Supplier may terminate the Contract immediately, refund or credit the Customer the price paid (as applicable) and require the return of any Products which have been delivered.
3.4 The Supplier accepts payment with Visa, Mastercard, Maestro, American Express, JCB and Diners Club cards and payment must be made at the time of submission of the Order, at which point the Supplier shall take payment for the entire value of the Order.
3.5 A Customer with a Trade Credit Account may pay for their Order via their Trade Credit Account by submitting the Order via their Trade Credit Account Log In and the amount of the Order shall be deducted from the available credit available on the Customer’s Trade Credit Account at the time of submission of the Order. For the avoidance of doubt, a Customer will only be able to use their Trade Credit Account for submitting and paying for Orders provided that they have sufficient credit available at the time of the Order.
3.6 For the avoidance of doubt, the Supplier shall not dispatch any Product(s) before either (a) receiving payment of the full purchase price from the Customer in respect of those Product(s) in accordance with clause 3.4 above or (b) the customer having sufficient credit available on its Trade Credit Account in accordance with clause 3.5 above (as applicable). The Supplier shall not be liable to the Customer for any losses resulting from the Supplier’s failure to dispatch Product(s) for Delivery where the full purchase price for the Product(s) has not been paid by the Customer.
3.7 The Supplier reserves the right to increase the price for any Product(s) prior to Delivery where the rate of VAT changes between the date of the Order and the date of dispatch of the Product(s) for Delivery. The Supplier shall adjust the rate of VAT that the Customer shall pay, unless the Customer has already paid for the Product(s) in full before the date of change in the rate of VAT.
4.1 The Supplier shall deliver the Product(s) to the Delivery Address in accordance with the timescales set out in the Order Confirmation.
4.2 The Supplier may deliver the Product(s) by instalments. Each instalment shall constitute a separate Contract. Any delay in Delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.3 Any dates quoted for despatch and/or Delivery within the Order Confirmation are approximate only, and it is agreed that the time of despatch and/or Delivery is not of the essence. The Supplier shall not be liable for any delay and/or failure in Delivery that is caused by a Force Majeure Event, the actions or omissions of the courier of the Product(s), whether selected by the Supplier or the Customer, the Customer’s failure to provide the Supplier with adequate instructions for Delivery or any other instructions that are relevant to the supply of Product(s).
4.5 Where the Supplier fails to deliver the Product(s) on time, the Customers normal statutory rights apply.
4.6 Where the Customer is required to take Delivery, it shall do so within a maximum of 7 days of the Supplier giving notice that the Product(s) are ready for Delivery.
4.7 The Customer must supply to Supplier, all required technical information, data (including drawing approvals) and all required commercial documentation. If dispatch and/or Delivery are delayed due to outstanding information as detailed in this clause the Supplier shall not be liable.
4.8 If the Customer fails to take or accept or by their own actions causes Delivery to be delayed then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
(a) Delivery shall be deemed to have been completed at 9am on the day on which the Supplier notified the Customer that the Product(s) were ready for Delivery; and
(b) the Supplier shall store the Product(s) until Delivery and shall be entitled to charge the Customer for all related costs and expenses for the storage of the Product(s) (including insurance).
4.9 The Customer shall ensure;
(a) accurate information is provided to the Supplier as to the Delivery Address; and
(b) it has suitable personnel and levels of security for receiving the Product(s).
4.10 The Supplier and the Customer agree that the Supplier’s proof of delivery shall constitute evidence of Delivery.
4.11 Unless otherwise set out on the page for the relevant Product(s) on the Website, the costs of Delivery and packaging for the Product(s), where they are to be delivered within the mainland of the United Kingdom, shall be borne by the Supplier.
4.12 Where the Customer requires Product(s) to be delivered to a location outside of the mainland of the United Kingdom, the Customer shall be responsible for the costs of such Delivery. The costs of Delivery to a location outside of the United Kingdom shall be displayed at the checkout page on the Website and shall be confirmed in the Order Confirmation.
- TITLE AND RISK
5.1 The risk in the Product(s) shall pass to the Customer once Delivery has taken place at the Delivery Address (or such other address as is agreed between the Customer and the Supplier in writing).
5.2 Title to the Product(s) shall pass to the Customer once the total purchase price for the Product(s) has been paid in full by the Customer.
- QUALITY OF THE PRODUCT(S)
6.1 The Product(s) are intended for use only in the UK. The Supplier does not warrant that the Product(s) comply with the laws, regulations or standards outside the UK.
6.2 The Supplier provides a warranty that on Delivery and for a period of 12 months from Delivery, the Products shall:
- subject to clause 2.7, conform in all material respects with their description;
- be free from material defects in design, material and workmanship; and
- be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
6.3 Subject to clause 6.4, if:
- the Customer gives the Supplier notice in writing within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 6.2;
- the Supplier is given a reasonable opportunity of examining the Products; and
- if the Supplier asks the Customer to do so, the Customer returns the Products to the Supplier at the Supplier’s cost,
the Supplier shall, at its option, repair or replace the defective Products, or refund or credit the price of the defective Products in full to the card or Trade Credit Account used for payment (as applicable).
6.4 The Supplier will not be liable for breach of the warranty set out in clause 6.2 if:
- the Customer makes any further use of the Products after giving notice under clause 6.3;
- the Customer alters or repair the Products without the Supplier’s written consent;
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
- the Products differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.5 The Supplier will only be liable to the Customer for the Products’ failure to comply with the warranty set out in clause 6.2 to the extent set out in this clause 6.
6.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.7 These provisions of this clause 6 also apply to any repaired or replacement Products supplied by the Supplier to the Customer.
- RIGHTS TO TERMINATE THE CONTRACT
7.1 The Customer may only terminate the Contract in circumstances where the Products have not been dispatched for Delivery by the Supplier.
7.2 Where the Customer wishes to exercise their rights in accordance with clause 7.1, the Customer must let the Supplier know by telephoning the Supplier’s customer services department on the number shown on the Website or by emailing the Supplier at firstname.lastname@example.org. If submitting a termination by email, the Customer should provide their name, business name, address, details of the Order and, where available, the Customer’s phone number and email address.
7.3 The Supplier shall process the refund due to the Customer within 14 days of the date that the Customer notifies the Supplier that it is terminating the Contract.
- LIMITATION OF LIABILITY
8.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by the Sale of Goods Act 1979 or Consumer Rights Act 2015;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
8.2 Subject to clause 8.1:
(a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or unforeseeable consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer in respect of all other losses, including foreseeable losses, arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Product(s) provided by the Supplier.
- DATA PROTECTION
9.2 The Company will comply with its obligations under all applicable data protection laws in the United Kingdom, as amended from time to time.
- INTELLECTUAL PROPERTY
10.1 All intellectual property rights in the Product(s), including but not limited to concepts, designs, models, samples, and/or logos and/or products shall belong to the Supplier and/or the third party who has licenced the right to use such intellectual property rights to the Supplier. The Customer shall have no rights whatsoever to an intellectual property rights in the Website or in connection with the Product(s).
10.2 The Supplier expressly forbids the Customer from producing, in any way, part or all of;
- a) any Product(s) owned by the Supplier; and;
- b) any Product(s) supplied by the Supplier to the Customer.
10.3 The Customer acknowledges that, in respect of any third party intellectual property rights in the Product(s), the Customer’s use of such intellectual property rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
- ASSIGNMENT AND SUBCONTRACTING
11.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when they are agreed in writing and are signed by the Supplier.
13.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that 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, recorded delivery, commercial courier or by email or fax.
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 recorded delivery, at 09:00 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 email or fax, one Business Day after transmission.
14.3 The provisions of this clause 14 shall not apply to the service of any proceedings or other documents in any legal action.
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by the Supplier or the Customer to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
- THIRD PARTY RIGHTS
A person who is not a party to the Contract shall not have any rights under or in connection with it.
- GOVERNING LAW AND JURISDICTION
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual dispute or claims), shall be governed by, and construed in accordance with, English law, and the Supplier and the Customer both irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.