Nicholson – Terms & Conditions of Sale
This Contract is between the Buyer (as specified in the Invoice and/or Order Acknowledgment) and Nicholson (as defined in these Conditions).
In these Conditions including the Invoice and/or Order Acknowledgment, unless the context otherwise requires, the following words have the following meanings:
“Nicholson”: Nicholson STS LLP OC412006 registered in England and Wales as a limited liability partnership. Registered and Trading address, Unit 13, Wireless Station Park, Chestnut Lane, Bassingbourn, SG8 5JH. “Buyer”: the person, firm or company as specified in the Invoice and/or Order Acknowledgment who agrees to purchase the Goods from Nicholson and to whom Nicholson agrees to sell the Goods. “Buyer Specification”: the details (if any) set out by the Buyer in the Invoice and/or Order Acknowledgment. “Conditions”: the terms and conditions of sale of Nicholson set out in this document and include any special terms and conditions agreed in writing between the Buyer and Nicholson in accordance with the procedure set out in these Conditions. “Contract”: the contract for the purchase and sale of the Goods by the Buyer from Nicholson. “Force Majeure”: any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including but not limited to strikes, lock-outs or other industrial disputes, acts of God, war, terrorism, riot, civil commotion, armed conflict, breakdown of plant or machinery, nuclear, chemical or biological contamination, natural disasters, adverse weather conditions or default of supplies or subcontractors. “Goods”: the manufactured roof products, systems or ancillaries which Nicholson is to supply to the Buyer in accordance with these Conditions, and as more specifically set out in the Invoice and/or Order Acknowledgment. “Goods Price”: the price for the Goods as agreed between Nicholson and the Buyer and specified in the Invoice and/or Order Acknowledgment. “Invoice”: the invoice sent by Nicholson to the Buyer, following payment by the Buyer, specifying quantities, prices, payment status and delivery details in respect of the Goods and to which these Conditions are appended. “Order Acknowledgment”: the written acknowledgment of an order received by Nicholson from the Buyer, sent via email by Nicholson to the Buyer confirming quantities, prices, payment status and delivery details in respect of the Goods and to which these Conditions are appended.
2.0 Basis of the Sale
2.1 Nicholson shall sell and the Buyer shall purchase the Goods for the Goods Price in accordance with these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 These Conditions apply to all supplies of Goods made by Nicholson to the Buyer unless a variation is expressly agreed in writing by a director of Nicholson and agreed in writing by the authorised representative of the Buyer.
2.3 Nicholson’s employees or agents are not authorised to make any representations or warranties concerning the Goods.
2.4 Descriptions and illustrations of the Goods in Nicholson’s publicity material, price lists and any other published materials are approximate and for general guidance only and do not form any part of the Contract between Nicholson and the Buyer.
2.5 Any typographical, clerical or other error or omission in any sale literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Nicholson shall be subject to correction without any liability on the part of Nicholson.
2.6 Any drawings, recommendation or suggestion relating to the use of the goods made by Nicholson whether in technical literature or in response to specific enquiry is given in good faith but it is the responsibility of the Buyer to satisfy itself as to the suitability of the Goods for their particular purpose and the Buyer shall be deemed to have done so.
2.7 Acceptance of the Goods (even if later rejected by the Buyer in accordance with these Conditions) shall constitute agreement by the Buyer to these Conditions and to the terms of the Contract.
3.0 Orders & Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by Nicholson and no contract shall come into effect between the parties unless and until confirmed and acknowledged in writing by Nicholson.
3.2 The Buyer shall be responsible for the choice of Goods specified in the Invoice and/or Order Acknowledgment and for ensuring the accuracy of the information given in the Invoice and/or Order Acknowledgment and for giving Nicholson any necessary further information relating to the Goods within a sufficient time to enable Nicholson to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Invoice and/or Order Acknowledgment.
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by Nicholson in accordance with a Buyer Specification, the Buyer shall indemnify Nicholson against all loss, damages, costs and expenses awarded against or incurred by Nicholson in connection with or paid or agreed to be paid by Nicholson in settlement of any claim for infringement of any patent or intellectual property rights of any other person which results from Nicholson’s use of the Buyer’s Specification.
3.5 Nicholson reserves the right to make any changes in the specification of the Goods which are required to conform to any applicable safety or other statutory requirements or which do not materially affect their quality or performance.
3.6 Where Nicholson manufactures a bespoke product or the Goods are not of a standard size usually produced by Nicholson then the Buyer shall pay the Goods Price in advance of any acceptance of the order by Nicholson.
3.7 Goods quoted as ex-stock are subject to availability.
4.1 Nicholson reserves the right to alter prices quoted in price lists or other published materials at any time without notice.
4.2 Unless otherwise stated in writing, all listed prices and the Goods Price are exclusive of and therefore subject to the addition of VAT at the prevailing rate.
5.0 Terms of Payment
5.1 Goods must be paid for at the time of order, unless, at Nicholson’s discretion, credit terms have been granted to the Buyer.
5.2 Where Nicholson has agreed to grant credit, payment must be made by the Buyer to Nicholson not later than 30 Days after the invoice date.
5.3 If the Buyer fails to pay the total of any sum due on the due date in accordance with clause 5.1 or clause 5.2, as the case may be, then Nicholson shall be entitled to:
5.3.1 cancel the Contract or suspend any further deliveries to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or goods supplied under any other contract between the Buyer and Nicholson) as Nicholson may think fit (notwithstanding any purported appropriation by the Buyer);
5.3.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 8% per annum above the Bank of England’s base rate, for the time being in force until payment in full is made with interest to be charged on a daily basis.
5.4 Nicholson will not exercise its right to cancel the Contract under clause 5.3 without first notifying the Buyer that he has failed to make payment in full in accordance with these terms of payment and allowing the Buyer three working days from the date of the notification to make the payment in full. Nicholson may give this notification in writing or orally.
5.5 If the Buyer makes payment late, then the estimated time for delivery of the Goods specified on the Invoice and/or Order Acknowledgment (if any) may be extended by Nicholson at its sole discetion and a new estimated delivery date may be notified to the Buyer.
5.6 The agreed credit limit will apply to all outstanding amounts at any point in time.
5.7 Credit terms granted to the Buyer may be withdrawn by Nicholson at any time without notice.
6.1 Despatch and delivery dates quoted are estimates only. Nicholson will make every effort to keep to them but accepts no liability for any financial or other loss or damage (whether direct or indirect) if delivery is delayed for any reason whatsoever.
6.2 Nicholson will arrange delivery of the Goods within the UK Mainland by means, at Nicholson’s discretion, of ordinary Goods transport. The risk in the Goods will pass to the Buyer when they are loaded on to the transport (or are offloaded at their destination, if Nicholson or its appointed agent is the carrier).
6.3 If the Buyer fails to take delivery of the Goods or fails to give Nicholson adequate delivery instructions at the time stated for delivery then, Nicholson may:
6.3.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.3.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage, insurance and selling expenses) charge the Buyer for any balance due to make payment up to the Goods Price.
6.4 Any claims for damage or loss in transit of the Goods shall be made verbally within 24 hours of delivery and in writing within 3 days of delivery or collection.
7.0 Nicholson Returns Policy
7.1 Nicholson will, at its own discretion, make payment to the Buyer upon receipt of returned Goods subject to a 20% restocking charge and the following;
7.2 Where Goods are to be returned by the Buyer, the Buyer must notify Nicholson within 40 days of the Invoice or Order Acknowledgment date.
7.3 Refunds can only be requested by and made to the original Buyer.
7.4 Nicholson will arrange collection of the Goods from the address to which they were delivered or elsewhere as advised. Nicholson reserves the right to charge extra for carriage.
7.5 The Goods must be clearly addressed to Nicholson and the Buyer is responsible for adequately packaging/protecting the Goods for transit so that they arrive in good condition.
7.6 Refunds can only be made for Goods that are received undamaged, in the condition in which they were originally received by the Buyer, and in a re-saleable condition.
7.7 Delivery charges and service charges on the original invoice are not refundable.
7.8 Where a quantity discount was given, the discounted amount will be chargeable if the revised Invoice or Order Acknowledgment value is below the threshold value for the relevant discount given.
7.9 No refunds can be made for bespoke products or Goods that have been customised or made to unique designs or sizes for the Buyer or where the Buyer has been advised that they are non-returnable.
7.10 Payment will be made by BACS at the end of the month in which the Goods were received back into stock.
7.11 All refunds are ultimately processed at the discretion of Nicholson.
8.0 Ownership of Goods
8.1 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the Goods shall remain Nicholson’s sole and absolute property as legal and equitable owner until such time as Nicholson has received, in cash or cleared funds, payment in full of the Goods Price and all other goods the subject of any other contract agreed to be sold by Nicholson to the Buyer for which payment is then due.
8.2 Until such time as the Buyer becomes the owner of the Goods, the Buyer shall hold the Goods as Nicholson’s fiduciary agent and bailee and shall properly store them on his premises separately from his own goods or those of any other person, protected and insured and readily identifiable as Nicholson’s Goods.
8.3 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) Nicholson shall be entitled at any time to require the Buyer to deliver up the Goods to Nicholson and Nicholson shall be entitled to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
8.4 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Nicholson.
8.5 Until payment due under all contracts between the Buyer and Nicholson has been made in full, in the event of sale of the Goods by the Buyer:
a) Nicholson shall be entitled to trace all proceeds of sale received by the Buyer through any bank of other account maintained by the Buyer and:
b) The Buyer shall if requested by Nicholson in writing to do so assign its rights to recover the selling price of the Goods from third parties concerned.
9.0 Warranties and Liability
9.1 Subject to the conditions set out below, Nicholson warrants that at the time of delivery the Goods will correspond with their specification and will be free from defects in material and workmanship.
9.2 The above warranty is given by Nicholson subject to the following conditions:
9.2.1Nicholson shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer or any failure by the Buyer to comply with Nicholson’s design and installation guidelines issued from time to time;
9.2.2 Nicholson shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Nicholson’s instructions (whether oral or in writing), misuse, alteration or repair of the Goods without Nicholson’s approval;
9.2.3 Nicholson shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the Goods Price has not been paid by the due date for payment;
9.2.4 If the Buyer makes any alteration to any of the Goods without Nicholson’s prior written approval then all warranties in the Goods either express or implied shall immediately become void.
9.3 The above warranty does not extend to parts, material or equipment incorporated in the Goods but not manufactured by Nicholson in respect of which the Buyer shall be entitled only to the benefit of any such warranty or guarantee as is given by the manufacturer to Nicholson.
9.4 Subject as expressly provided in these Conditions or to any express warranty or guarantee given by Nicholson in writing and which is expressed to be part of the Contract, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent possible.
9.5 The Buyer shall within 7 days of the arrival of each delivery of the Goods, notify Nicholson in writing of any defect by reason of which the Buyer alleges that the Goods delivered are not in accordance with the specification and which should be apparent on reasonable inspection.
9.6 If either party is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.
9.7 Notwithstanding any other provision of these Conditions, neither party shall be deemed to be in breach of these Conditions, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under the Contract, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and time for performance of that obligation shall be extended accordingly.
9.8 If at any time Nicholson claims Force Majeure in respect of its obligations under the Contract with regard to the supply of the Goods, Nicholson shall, where possible, be entitled to obtain from any other person such quantity of the Goods as Nicholson is unable to supply and Nicholson shall be entitled to supply those goods to the Buyer and the Buyer shall not be entitled to reject those goods on the basis that they have not been manufactured by Nicholson.
9.9 As a condition precedent to any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification the Buyer shall notify Nicholson within 7 days after discovery of the defect or failure. If the Buyer does not notify Nicholson accordingly, the Buyer shall not be entitled to reject the Goods and Nicholson shall have no liability for any such defect or failure, and the Buyer shall be bound to pay the Goods Price as if the Goods have been in accordance with the Contract and any specification.
9.10 Where any valid claim in respect of the Goods which is based on any defect in the quality or condition of the Goods or a part of the Goods or their failure to meet specification is notified to Nicholson in accordance with these Conditions, Nicholson shall be entitled to replace the Goods (or the part in question) or at Nicholson’s sole discretion, refund to the Buyer the Goods Price where all of the Goods are defective (or a proportionate part of the Goods Price where not all the Goods are defective) but Nicholson shall have no further liability to the Buyer.
9.11 Except in respect of death or personal injury caused by Nicholson’s negligence Nicholson shall not be liable to the Buyer for any consequential loss or damage however caused which arises out of or in connection with the supply of the Goods or their use or sale by the Buyer, except as expressly provided in these Conditions, or any losses arising as a result of any third party bringing a claim in respect of any nature whatsoever.
9.12 Nicholson shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or failure to perform, any of Nicholson’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond Nicholson’s control.
9.13 Nicholson’s total aggregate liability arising out of, or in connection with the performance or contemplated performance of the Contract whether for negligence or breach of contract or any case whatsoever shall in no event exceed the value or replacement cost of the price paid or payable by the Buyer for the Goods which are the subject of the Contract.The Goods Price has been calculated on the basis that Nicholson will exclude or limit its liability as set out in these Conditions and the Buyer by placing an order agrees and warrants that it shall insure against or bear itself any loss for which Nicholson has excluded or limited its liability in these Conditions and Nicholson shall have no further liability to the Buyer.
10.1 If any claim is made against the Buyer that the Goods infringe or that their use or sale infringes the patent, copyright, design, trademark or other industrial or intellectual property rights of any other person, Nicholson shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim against the Buyer provided that:
10.1.1 as a condition precedent to the operation of this indemnity the Buyer notifies Nicholson of the claim (or threatened claim) within [five] working days of the Buyer becoming aware (or five days of when the Buyer should reasonably have been aware) of the claims;
10.1.2 Nicholson is given full control of any proceedings or negotiations in connection with any such claim;
10.1.3 the Buyer shall give Nicholson all reasonable assistance for the purposes of any such proceedings or negotiations and shall comply with Nicholson’s requirements and instructions; and
10.1.4 Nicholson shall be entitled to the benefit of, and the Buyer shall accordingly account to Nicholson for, all damages and costs (if any) awarded in favour of the Buyer.
10.2 Where the Buyer uses the Goods: a) In the manufacture or the supply of any other goods or; b) In the provision of a service; the Buyer shall indemnify and hold harmless Nicholson from and against all loss, damages, costs and expenses awarded against or incurred by Nicholson in respect of such use by the Buyer arising out of the manufacture, supply or distribution of those other goods or the provision of that service.
10.3 The Buyer shall indemnify and hold harmless Nicholson from and against all loss, damages, costs and expenses awarded against or incurred by Nicholson in respect of any warranty in respect of the Goods, howsoever given by the Buyer to a third party.
11.0 Insolvency of the Buyer
11.1 This clause applies if:
11.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or a firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
11.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
11.1.3 the Buyer ceases or threatens to cease, to carry on business; or
11.1.4 Nicholson reasonably believes that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly. If this clause applies then Nicholson shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable not withstanding any previous agreement or arrangement to the contrary.
12.0 Health and Safety
12.1 The Buyer shall ensure that due regard is given to the relevant requirements of all appropriate Health and Safety legislation in the handling and installation of the Goods. Such legislation includes, but is not limited to, the Health & Safety at Work Act 1974, Control of Lead at Work Regulations 1998, Lead and you: A guide to working safely with Lead, Manual Handling Operation Regulations 1992 (as amended), etc. 12.2 The Buyer will ensure that all relevant information and recommendations as referred to in
12.1 will be made available to and will be applied to the Buyers employees and contractors.
13.1 No waiver by Nicholson of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.2 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
13.3 The Contract shall be governed by the laws of England and Wales.
14.0 Data Handling