DEFINITIONS AND INTERPRETATION
1.1 In these Terms, the following definitions and rules of interpretation shall apply:
Apparent Defects: as defined in clause 7.2;
Contract: the contract between you and us for the sale and purchase of the Products in accordance with these Terms;
Order Confirmation: as defined in clause 2.4;
Products: the products (or any part of them) which you order from us and any alternative product we may supply under clause 3.4;
Unforeseen Event: any act or event beyond our or your reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
We, us, our: partnership being Industrial Safety Birmingham (ISB) – having its trading address at: Langley Drive, Chester Road Industrial Estate, Birmingham, B35 7AD;
Website: the website at www.isb-group.com including any account holder specific pages, and any other websites which you may be directed to as part of our ordering process;
Working Day: any day excluding Saturdays, Sundays and bank and public holidays in England; and
You, your: the company or business who orders Products from us.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a party includes its personal representatives, successors or permitted assigns.
1.4 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.
1.5 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.
1.6 A reference to writing or written includes e-mails.
BASIS OF CONTRACT
2.1 By ordering any of our Products, you agree to be bound by these Terms, which will apply to any Contract between us to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.3 Your order constitutes an offer by you to purchase Products in accordance with these Terms.
2.4 Our order process allows you to check and amend any errors before submitting your order to us. After you place an order, you will receive an email from us acknowledging that we have received your order. This shall not constitute acceptance of your order, which shall only be deemed accepted when we send to you an email that confirms that the Products have been dispatched, or if we otherwise notify you in writing that your order has been accepted (Order Confirmation), at which point a Contract will come into existence between you and us.
2.5 We reserve the right to amend these Terms from time to time. Every time you wish to order Products, the Terms in force at that time will apply to the Contract between you and us. We will keep you informed and give you notice of this by stating that these Terms have been amended and the relevant date at the top of this page.
OUR PRODUCTS AND RETURNS POLICY
3.1 The Products are described on our Website and/or in our catalogue. However, any samples, drawings, descriptive matter or advertising which we produce and any descriptions or illustrations contained on our Website or in our catalogue are produced for the sole purpose of giving you an approximate idea of the Products described. They shall not form part of the Contract and shall have no contractual force.
3.2 The packaging of the Products may vary from that shown on images on our Website, in our catalogue and in our advertising materials.
3.3 All Products shown on our Website, in our catalogue and in our advertising materials are subject to availability.
3.4 If the Product you have ordered from us is unavailable, we may, at our discretion provide you with an alternative Product that is of a similar type and specification to the Product you ordered from us at the same price as the Product you ordered from us.
3.5 If you are not happy with any alternative Product we supply to you under clause 3.4, you may return the alternative Product to us at your risk and cost. In those circumstances your order will be deemed to be cancelled and we shall be under no further obligation to provide the Product, unless otherwise agreed in writing.
3.6 Subject to clause 3.8, you may, at any time up to 30 (thirty) calendar days after delivery of the Product, return the Product to us at your risk and cost. To return a Product to us, you must first telephone us on 0121 749 4433 and obtain a returns authorisation number. We will not accept Products returned to us without a returns authorisation number.
3.7 If you return a Product to us under clause 3.6, we reserve the right to charge you a restocking fee of 15% of the price you paid us for the Product (excluding VAT). You must also pay us a sum equal to any VAT payable on the restocking fee. We may invoice you for the restocking fee immediately. You must pay our invoice within 10 (ten) calendar days of receipt.
3.8 You may not return a Product to us under clause 3.6:
(a) unless the Product is returned to us in the same condition as it was delivered to you; or
(b) if the Product has been branded for you.
4.1 If you ask us to brand Products for you:
(a) you are responsible for making sure that any branding you submit to us is accurate and complete; and
(b) you will indemnify us against all liabilities, costs, expenses (including legal expenses), damages and losses incurred by us in connection with any claim made against us for actual
or alleged infringement of a third party’s intellectual property rights as a result of us branding the Products for you.
HOW WE USE YOUR PERSONAL INFORMATION
5.1 For the purposes of the Data Protection Act 1998, we are the data controller.
(a) for internal record keeping purposes;
(b) to carry out our obligations under any contracts entered into between you and us;
(c) to improve our products and services, for example by sending you questionnaires or product review forms by post and email for you to complete; and
(d) to send you promotional information by post and email about our similar products and services which we think you may find interesting.
5.3 If you do not wish to receive marketing communications from us, please email us at firstname.lastname@example.org or write to us at ISB, Langley Drive, Birmingham B35 7AD, to let us know that you do not want us to use your personal information for marketing purposes.
5.4 If you opt out of receiving marketing communications from us, we will suppress your personal information on our marketing database so you do not receive any further marketing communications from us.
5.5 We will need to keep some of your personal information to record the fact that you do not want to receive marketing communications from us.
5.6 We will not provide your personal information to any other person, business or organisation except:
(a) to our third party carriers to allow your order to be delivered to you;
(b) to credit reference companies to carry out credit checks on you;
(c) if we or substantially all of our assets are acquired by a third party, in which case personal information held by us about our customers will be one of the transferred assets; and
(d) if we are under a duty to disclose or share your personal information in order to comply with any legal obligation, or in order to enforce or apply our legal rights against you; or to protect our rights, property, or safety, or the rights, property or safety of our customers or others. This includes exchanging information with others for the purposes of fraud protection and credit risk reduction.
6.1 If we have agreed to deliver the Products to you, your order will be fulfilled within a reasonable time of receipt of us sending the Order Confirmation. If we have agreed that you will collect the Products from us, you must collect the Products from us within 5 (five) Working Days of us sending you the Order Confirmation.
6.2 Delivery will be completed on the unloading of the Products at the address you gave us or when you collect the Products from us, depending on what we have agreed.
6.3 Any dates quoted for the delivery of the Products are approximate only, and time of delivery shall not be of the essence. We shall not be liable for any delay in delivery of the Products that is caused by an Unforeseen Event or your failure to provide us with adequate delivery instructions or any other instructions relevant to the supply of the Products.
6.4 If we fail to deliver the Products, our liability shall be limited to the costs and expenses you incur in obtaining replacement products of a similar description and quality in the cheapest market available, less the price of the Products. We shall not be liable for any failure to deliver the Products to the extent that such failure is caused by an Unforeseen Event or your failure to provide us with adequate delivery instructions or any other instructions relevant to the supply of the Products.
6.5 If we are not able to deliver the whole of your order at one time due to operational reasons or shortage of stock, we may deliver the order in instalments, and each instalment shall be invoiced and paid for separately. We will not charge you extra delivery costs for this. However, if you ask us to deliver your order in instalments, we may charge you extra delivery costs. Each instalment shall be a separate Contract. If we are late delivering an instalment or if one instalment is faulty, that will not entitle you to cancel any other instalment.
6.6 If you fail to take or accept delivery of the Products when we tender them for delivery, then, except where such failure or delay is caused by an Unforeseen Event or our failure to comply with our obligations under the Contract:
(a) delivery of the Products shall be deemed to have been completed at 9.00am on the day we tendered the Products for delivery; and
(b) subject to clause 6.7, we will store the Products until delivery takes place, and charge you for all related costs and expenses (including insurance and any redelivery costs).
6.7 If 30 (thirty) calendar days after the day on which we tendered the Products for delivery, you have not taken or accepted delivery of them, we may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, and the costs of removing any branding applied at your request, account to you for any excess over the price of the Products or charge you for any shortfall below the price of the Products.
6.8 You must notify us immediately if any Products we agree to deliver to you have not arrived 3 (three) Working Days after any date quoted for delivery of the Products.
6.9 You will not be entitled to reject the Products if we deliver up to and including 5% (five percent) more or less than the quantity of Products ordered, but a pro rata adjustment will be made to your invoice on receipt of notice from you that the wrong quantity of Products was delivered, subject to you providing us with evidence to our reasonable satisfaction of the over or under delivery.
7.1 You must inspect the Products immediately upon delivery.
7.2 You must notify us within 3 (three) Working Days of delivery of the Products of any defects which a reasonable inspection of the Products would reveal (Apparent Defects).
7.3 If you do not notify us of any Apparent Defects within 3 (three) Working Days of delivery of the Products, the Products shall be deemed not to have any Apparent Defects.
RISK AND OWNERSHIP
8.1 The risk in the Products shall pass to you on completion of delivery to you, your carrier or your nominee.
8.2 Title to the Products shall not pass to you until we have received payment (in cleared funds) for:
(a) the Products; and
(b) any other products that we have supplied to you.
8.3 Until title to the Products passes to you, you shall:
(a) hold the Products on a fiduciary basis as our bailee;
(b) store the Products separately from all other products you hold so that they remain readily identifiable as our property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(d) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from delivery;
(e) notify us immediately if you become subject to any of the events listed in clause 13.2; and
(f) give us such information relating to the Products as we may reasonably require,
but you may resell or use the Products in the ordinary course of your business subject to these Terms.
8.4 If before title to the Products passes to you, you become subject to any of the events listed in clause 13.2, or we reasonably believe that any such event is about to happen and we notify you accordingly, then, provided that the Products have not been resold, and without limiting any other right or remedy we may have, we may at any time require you to deliver up the Products and, if you fail to do so promptly, enter your premises, or any other premises where the Products are stored, and recover the Products.
9.1 If you order Products for delivery outside the United Kingdom, your order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Please note that we have no control over these charges and we cannot predict their amount.
9.2 You will be responsible for payment of all such import duties and taxes. Please contact your local customs office for further information before placing your order.
9.3 You must comply with all applicable laws and regulations of the country for which the Products are destined. We will not be liable or responsible if you break any such laws or regulations.
PRICE OF PRODUCTS AND DELIVERY CHARGES
10.1 The prices of the Products will be as set out on our Website at the time you place your order.
10.2 We reserve the right to increase the price of the Products from time to time, but changes will not affect any order which we have confirmed with an Order Confirmation.
10.3 We take all reasonable care to ensure that the prices of Products set out on our Website are correct. However if we discover an error in the price of Product(s) you ordered, please see clause 10.6 for what happens in this event.
10.4 You shall pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Products as at the date of delivery or collection (as applicable).
10.5 The price of a Product does not include delivery charges, which will be added to the total amount due. Our delivery charges can be found on our Website or in our catalogue. A copy of our delivery charges is available upon request.
10.6 It is always possible that, despite our reasonable efforts, some of the Products on our Website may be incorrectly priced. We will normally check prices as part of our dispatch procedures so that:
(a) where the Product’s correct price is less than the price stated on our Website, we will make sure you are charged the lower price; and
(b) if the Product’s correct price is higher than the price stated on our Website, we will contact you as soon as possible to inform you of this error and we will give you the option of continuing to purchase the Product at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details we have for you, we will treat the order as cancelled and notify you in writing.
11.1 We may invoice you for the price of the Products at any time after delivery. You must pay our invoice within 30 (thirty) days of the date of the invoice or within such other timeframe as we may agree with you in writing from time to time. Payment must be made to our nominated bank account. Time of payment shall be of the essence.
11.2 If you fail to make any payment due to us under the Contract by the due date for payment (Due Date), then you must:
(a) pay interest on the overdue amount at the statutory rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 from time to time. Such interest shall accrue on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay the interest together with the overdue amount; and
(b) reimburse us for all costs and expenses (including legal expenses) we incur in chasing the late payment.
11.3 We reserve the right to close your account with us and withdraw your credit facilities at any time with immediate effect. If we close your account with us, all monies you owe us shall become immediately due and payable to us.
11.4 Both you and we shall pay all amounts due to each other under the Contract in full without any deduction or withholding except as required by law.
OUR WARRANTY FOR THE PRODUCTS
12.1 Subject to clause 12.3, we provide a warranty that on delivery and for a period of 6 months from delivery, the Products shall:
(a) conform in all material respects with their description;
(b) be free from material defects in design, material and workmanship; and
(c) be fit for any purpose held out by us.
12.2 Subject to clause 12.3, if:
(a) you give us 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 12.1;
(b) we are given a reasonable opportunity of examining the Products; and
(c) you (if we ask you to) return the Products to us at your cost, we will, at our option, repair or replace the defective Products or refund the price of the defective Products in full.
12.3 The warranty in clause 12.1 does not apply to any defect in the Products if:
(a) the defect is an Apparent Defect which you failed to report to us in accordance with clause 7.2;
(b) you make any further use of the Products after giving us notice of the defect;
(c) caused by fair wear and tear;
(d) caused by wilful damage, abnormal storage or working conditions, accident or negligence by you or by any third party;
(e) caused by your failure to operate, store, commission, install, use or maintain the Products in accordance with the user instructions or good trade practice regarding the same;
(f) caused by any alteration or repair by you or by a third party who is not one of our authorised repairers; or
(g) caused by us applying any branding you submit to us to the Products.
12.4 Except as provided in this clause 12, we shall have no liability to you in respect of the Products’ failure to comply with the warranty set out in clause 12.1.
12.5 These Terms shall apply to any repaired or replacement Products which we supply to you.
YOUR INSOLVENCY OR INCAPACITY
13.1 If you become subject to any of the events listed in clause 13.2, or if we reasonably believes that you are about to become subject to any of them and we notify you accordingly, then, without limiting any other right or remedy available to us, we may cancel or suspend all further deliveries under the Contract or under any other contract between us without incurring any liability to you, and all outstanding sums in respect of Products delivered to you shall become immediately due.
13.2 For the purposes of clause 13.1, the relevant events are:
(a) you suspend, or threaten to suspend, payment of your debts, or you are unable to pay your debts as they fall due or you admit inability to pay your debts, or (being a company) you are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) you are deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) you have any partner to whom any of the foregoing apply;
(b) you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or you make a proposal for or enter into any compromise or arrangement with your creditors other than (where you are a company) where these events take place for the sole purpose of a scheme for your solvent amalgamation with one or more other companies or for your solvent reconstruction;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up, other than for the sole purpose of a scheme for your solvent amalgamation with one or more other companies or for your solvent reconstruction;
(d) (being an individual) you are the subject of a bankruptcy petition or order;
(e) one of your creditors or encumbrancers attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 (fourteen) calendar days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over you;
(g) (being a company) a floating charge holder over your assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets;
(i) any event occurs, or proceeding is taken, with respect to you in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in clauses 13.2(a) to 13.2(h) (inclusive);
(j) you suspend, threaten to suspend, cease or threaten to cease to carry on all or substantially the whole of your business;
(k) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) you die or, by reason of illness or incapacity (whether mental or physical), you are incapable of managing your own affairs or you become a patient under any mental health legislation.
13.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
14.1 We only supply the Products for internal use by your business, and you agree not to use the Products for any re-sale purposes without our prior written consent.
14.2 Nothing in these Terms limits or excludes our liability for:
(a) death or personal injury caused by our negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
(d) defective products under the Consumer Protection Act 1987; or
(e) any other liability which we cannot lawfully limit or exclude.
14.3 Subject to clause 14.2, we will under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) any loss of profits, sales, business, or revenue;
(b) loss or corruption of data, information or software;
(c) loss of business opportunity;
(d) loss of anticipated savings;
(e) loss of goodwill; or
(f) any indirect or consequential loss.
14.4 Subject to clause 14.2 and clause 14.3, our total aggregate liability to you in respect of all 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 the price of the Products.
14.5 Except as expressly stated in these Terms, we do not give any representation, warranties or undertakings in relation to the Products. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise (including without limitation sections 13 to 15 of the Sale of Goods Act 1979) is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Products are suitable for your purposes.
15.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by an Unforeseen Event.
15.2 If an Unforeseen Event takes place that affects the performance of our obligations under a Contract:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Unforeseen Event.
COMMUNICATIONS BETWEEN US
16.1 Any notice or communication sent by you to us under or in connection with the Contract shall only be valid if sent to us by e-mail to the applicable email address set out in these Terms or, if there is none, to email@example.com or by pre-paid post to our business address at Langley Drive, Birmingham, B35 7AD.
16.2 If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address we have for you.
16.3 Any notice given by you to us, or by us to you, will be deemed received and properly served 24 hours after an e-mail is sent or 3 (three) Working Days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
17.1 We may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights and obligations under the Contract. You may not at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under the Contract without our prior written consent.
17.2 You confirm that you have authority to bind any business on whose behalf you order Products.
17.3 These Terms and your order constitute the entire agreement between you and us in relation to the sale and purchase of the Products. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in these Terms. Nothing in this clause 17.3 shall limit or exclude our liability for fraudulent misrepresentation or for statements made fraudulently.
17.4 This Contract is between you and us. No other person shall have any rights to enforce any of its terms whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
17.5 Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
17.6 If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations.
17.7 Without prejudice to our right to amend these Terms pursuant to clause 2.5, the Contract may not be varied without your and our prior written consent.
17.8 These Terms are governed by English law. This means that a Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), will be governed by English law. We both agree to the exclusive jurisdiction of the courts of England and Wales over the Contract.
17.9 You should print a copy of these Terms or save them to your computer for future reference. These Terms, and any Contract between us, are only in the English language.