TERMS AND CONDITIONS OF SALE
Your attention is drawn to the clauses in these conditions (“Conditions”) in bold type which exclude or limit Stocks’ liability
1. DEFINITIONS
1.1. In these Conditions:
“Buyer”: means the person for whom Stocks has agreed to provide the Goods in accordance with these Conditions
“Contract”: means the contract for supply of the Goods specified in each order and accepted by Stocks pursuant to and on the terms of these Conditions
“Delivery Address”: means the delivery address referred to in Stocks quotation or notification of acceptance of order
“Goods”: means the goods to be supplied to the Buyer pursuant to the Contract
“Stocks”: means Stocks 2015 Ltd, a company incorporated in England with registration number 09561548 whose registered office is at Unit 4, Caledonia Way, Stretford Motorway Estate, Manchester, M32 0ZH
“Writing”: includes facsimile transmissions and emails.
1.2. In these Conditions words importing gender include each other gender; references to persons include bodies corporate, firms and unincorporated associations, the singular include the plural and vice versa; and references to clauses are to clauses of these Conditions.
1.3. The headings in these Conditions are included for convenience only and shall not affect their interpretation.
1.4. References to all and any part of any statute or statutory instrument include any statutory amendment, modification or re-enactment in force from time to time and references to any statute include any statutory instrument or regulations made under it.
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.
2. BASIS OF AGREEMENT
2.1. Stocks shall provide the Goods to the Buyer subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions put forward by the Buyer or which are implied by trade, custom, practice or course of dealing.
2.2. No variation to these Conditions shall be binding unless agreed in Writing between the Buyer and a duly authorised representative of Stocks.
2.3. Stocks’ employees or agents are not authorised to make any representations concerning the Goods unless confirm by a duly authorised representative of Stocks in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
2.4.Stocks may at any time correct without liability any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance or offer, invoice or other document or information issued by it.
2.5. The Buyer warrants and represents to Stocks that at the time of submitting its order and at the time the Contract is made, none of the events listed in clauses 12.1 to 12.11 has occurred and is continuing, the Buyer is not insolvent and there are no circumstances which would entitle any debenture holder or secured creditor to appoint a receiver of the Buyer or any of its assets or entitle any person to petition for its winding up or exercise any other right over or against the Buyer or any of its assets.
3. QUOTATIONS AND ORDERS
3.1. Any quotation provide by Stocks to the Buyer is valid for a period of three days only from the date when it was dispatched by Stocks to the Buyer, or such earlier period as may be stipulated on the quotation.
3.2. No order submitted by the Buyer shall be deemed accepted, and the Contract shall not come into force until Stocks has dispatched a confirmation in Writing to the Buyer stating that it has accepted the order concerned on these Conditions.
3.3. The Buyer is responsible to Stocks for ensuring the accuracy of the terms of any order or other materials submitted to Stocks, including any applicable specification submitted to Stocks and for giving Stocks any necessary information relating to the Goods with sufficient time to enable Stocks to perform the Contract in accordance with its terms.
3.4. No order which has been accepted by Stocks may be cancelled by the Buyer except with the agreement in Writing of Stocks and on terms that the Buyer shall indemnify Stocks in full against all loss, costs, damages, charges and expenses incurred by Stocks.
3.5. Stocks reserves the right to accept or refuse orders. Stocks also reserves the right (without prejudice to any other remedy) to cancel any uncompleted order or to suspend delivery in the event of any of the Buyer’s obligations (including payment on the due dates for Goods delivered) to Stocks not being performed in accordance with their terms.
3.6. Stocks reserves the right to make any changes to the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to Stocks’ specification or in accordance with the samples provided to the Buyer by Stocks which do not materially affect their quality or performance.
3.7. All illustrations, drawings and general descriptions accompanying any quotation from Stocks, or contained in Stocks’ price lists, advertisements or other literature (including items accessible on the internet) or otherwise provided to the Buyer are intended for general guidance only, shall not be binding on Stocks and are approximate indications of the type, size or colour of the Goods quoted for and sales of such Goods shall not be by reference thereto. They shall not form part of the Contract or have any contractual force.
3.8. The packaging of the Goods is at the sole discretion of Stocks who shall have the right to pack the Goods in such manner and with such materials as it thinks fit.
4. SAMPLES
4.1. Stocks may at its discretion submit samples of the Goods to the Buyer for approval. Stocks shall not be liable for any errors not corrected by the Buyer in respect of any such samples.
4.2. Without prejudice to clause 5.2 Stocks shall be entitled to increase the price of the Goods to reflect any change in the Buyer’s instructions following submission of samples, including the cost of further samples.
5. PRICE
5.1. The price of the Goods shall be Stocks’ quoted price or where no price has been quoted (or a quoted price is no longer valid) the price listed in Stocks’ published price list current at the date of acceptance of the order. In addition Stocks shall be entitled to charge for all samples and displays supplied by Stocks to the Buyer.
5.2. Stocks reserves the right, at any time before delivery in accordance with clause 7, to refuse, modify or renegotiate orders in the event of any increase in the cost to Stocks of supplying the Goods which is due to any factor, including specifications for the Goods requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give adequate or accurate information or instructions, any changes in taxes, duties or surcharges, or any currency exchange rate fluctuations, together with any other conditions affecting the charges, quotes or procedures Stocks is obligated to followed. If an order is cancelled by Stocks due to circumstances set out in this clause 5.2, then the Buyer shall be liable to indemnify Stocks against all losses, costs (including the cost of all labour and materials used and overheads incurred), damages, charges and expenses arising out of the orders and the cancellation thereof.
5.3. Unless agreed otherwise the price of the Goods is inclusive of transport to the Delivery Address (as defined below). Any change to the Delivery Address may attract additional charges.
5.4. The price of the Goods is exclusive of value added tax or any other applicable sales tax, which shall also be payable by the Buyer.
6. TERMS OF PAYMENT
6.1. Stocks may invoice the Buyer for the price of the Goods at any time on or after delivery in accordance with clause 7.
6.2. The Buyer shall pay the price for the Goods within thirty days of the date of Stocks’ invoice without any set-off, counterclaim or other deductions or withholding (except for any deduction or withholding required by law) whatsoever by cheque or cleared funds. Stocks may at any time, without limiting any other rights or remedies it may have, set-off any amount owing to it by the Buyer.
6.3. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to it, Stocks may take such of the following actions as it deems appropriate:
6.3.1. suspend any further deliveries to the Buyer;
6.3.2. appropriate any payment made by the Buyer to such invoices Stocks may think fit (notwithstanding any purported appropriation by the Buyer);
6.3.3. charge the Buyer interest (both before and after judgment) on the amount outstanding on a daily basis at the rate of 4% per annum above the base rate of National Westminster Bank plc from time to time until all outstanding amounts are paid in full;
6.3.4. terminate the Contract;
6.3.5. bring an action for payment of any outstanding invoices notwithstanding that property in the Goods has not passed to the Buyer.
6.4. If the recovery of any sums outstanding from the Buyer to Stocks is passed to a debt collection agency, the Buyer shall pay, on an indemnity basis, Stocks’ costs incurred in instructing such debt collection agency and all legal and other costs ancillary thereto.
7. DELIVERY
7.1. Delivery of the Goods shall be made by Stocks delivering the Goods to the delivery address agreed with the Buyer (“Delivery Address”).
7.2. If the Buyer fails to accept delivery in accordance with clause 7.1, Stocks may exercise either of the following rights:
7.2.1. treat the Buyer’s failure as a repudiation of the Contract and terminate the Contract with immediate effect, in which event Stocks may do any of the following, either alone or in combination;
(i) dispose of the Goods as it thinks fit;
(ii) retain any payments made by the Buyer before termination of the Contract; and/or
(iii) recover from the Buyer any costs incurred in respect of storage of the Goods or their disposal, together with damages for any other losses caused by the Buyer’s breach; or
7.2.2. arrange for storage of the Goods in which case:
(i) the Goods shall be stored at the Buyer’s own risk;
(ii) the costs of storage shall be for the Buyer’s account and the Buyer will indemnify Stocks against all costs incurred by Stocks in effecting or arranging such storage;
(iii) Stocks may at any time give the Buyer notice to collect the Goods and if the Buyer fails to comply with such notice, treat the Buyer’s breach as repudiatory, in accordance with clause 7.2.1 (in which event the provisions of that clause shall apply), or continue to store them in accordance with this clause.
7.3. Any dates quoted by Stocks for delivery of the Goods are approximate only and Stocks shall not be liable for any losses caused to the Buyer for any delay in delivery of the Goods howsoever caused. Time for delivery of the Goods shall not be of the essence.
7.4. The Buyer shall not be entitled to reject the Goods if Stocks delivers up to and including 10% more or less of the quantity and/or value of Goods ordered pursuant to a particular order.
7.5. Where Stocks is entitled to deliver the Goods by instalments, each delivery shall constitute a separate contract and failure by Stocks to deliver one or more instalments in accordance with the Contract shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7.6. Stocks reserve the right to withhold delivery of Goods to the Buyer at any time when the Buyer has exceeded, or upon delivery would exceed any credit limit with Stocks either in relation to the Goods or otherwise.
7.7. A delivery or collection note signed by or on behalf of the Buyer, or the Buyer’s customer, agent or duly authorised representative, is deemed to be evidence of the delivery or collection of the Goods specified in the note.
7.8. Where the unloading of the Goods is for any reason delayed the Buyer shall indemnify Stocks in respect of any loss or damage which it may sustain in consequence thereof.
8. RISK AND PROPERTY
8.1. Risk of damage to or loss of, the Goods shall pass to the Buyer upon delivery of the Goods at the Delivery Address.
8.2. Subject to clause 8.4, title to the Goods shall not pass to the Buyer until:
8.2.1. Stocks receives payment in full (in cash or cleared funds) for:
(i) the Goods; and
(ii) any other goods that Stocks has supplied to the Buyer; or
8.2. Stocks notifies the Buyer in Writing that title in the Goods has passed to the Buyer
8.3. Until title to the Goods has passed to the Buyer, the Buyer shall:
8.3.1. store the Goods in such a way that they remain readily identifiable as Stocks’ property and, if practicable, separately from all other goods held by the Buyer;
8.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.3. not charge or mortgage any of the Goods (or attempt to do so) or allow any third party to seize or encumber the Goods;
8.3.4. maintain the Goods in a satisfactory condition having regard to the nature of the Goods;
8.3.5. maintain the Goods in a safe and proper manner, so as to protect the Goods from theft, loss or damage;
8.3.6. keep the Goods insured against all risks for their full price from the date of delivery;
8.3.7. notify Stocks immediately if it becomes subject to any of the events set out in clauses 12.1 to 12.11; and
8.3.8. give Stocks such information relating to the location and condition of the Goods as Stocks may require from time to time.
8.4. Subject to clause 8.5, the Buyer may, before the time at which title would ordinarily pass in accordance with clause 8.2, resell the Goods with good title or use the Goods, in each case in the ordinary course of its business (but not otherwise). If the Buyer resells the Goods before that time:
8.4.1. it does so as principal and not as Stocks’ agent; and
8.4.2. title to the Goods shall pass from Stocks to the Buyer immediately before the time when title to the Goods passes from the Buyer to its sub-purchaser .
8.5. If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events set out in clauses 12.1 to 12.13, then without limiting any other right or remedy Stocks may have:
8.5.1. the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
8.5.2. Stocks may at any time (itself or through its employees and/or agents):
(i) require the Buyer to deliver up all Goods in its possession which have not been resold or irrevocably incorporated into another product; and
(ii) if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are, or are reasonably likely to be, stored in order to recover them.
8.6. On termination of the Contract, Stocks’ rights contained in this clause 8 shall remain in effect.
8.7.It shall be the responsibility of the Buyer (and not the responsibility of Stocks) to obtain all consents necessary for the installation and storage of any Goods and to satisfy itself that the installation and storage of such Goods is in accordance with the provisions of all applicable laws.
9. INTELLECTUAL PROPERTY
9.1. Stocks will transfer to the Buyer such title as it has to the Goods subject to the provisions of clause 8.
9.2. Stocks believes that the Goods do not infringe any intellectual property rights of any third party and warrants that it is not aware of any adverse third party intellectual property rights affecting the Goods, other than those expressly disclosed to the Buyer.
9.3. If it is alleged that the Goods infringe any intellectual property right of any third party the Buyer shall:
9.3.1. promptly notify Stocks of the alleged infringement;
9.3.2. allow Stocks to defend such third party claim as it thinks fit and have sole control, at Stocks expense, of any litigation and/or negotiations relating thereto; and
9.3.3. not without Stocks’ consent make any admission of liability.
9.4. The Buyer will not without Stocks’ permission resell any Goods supplied under this Contract from which any label or logo has been removed or altered.
10. WARRANTIES AND LIABILITY
10.1. Stocks will use its reasonable endeavours to deliver the correct quantity and/or value of Goods ordered, subject always to a margin of ten per cent being allowed for overs or shortage, the same to be charged or deducted (as the case may be) by way of a pro rata adjustment made to the relevant invoice.
10.2. Subject to clause 10.1, Stocks shall use its reasonable endeavours to deliver the Goods in accordance with any specification agreed with the Buyer but Stocks does not warrant that the Goods will be fit for any particular purpose or of satisfactory quality and all implied warranties and conditions relating to the Goods are hereby excluded. In particular, 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.
10.3. Stocks does not warrant that the Goods are fit for any particular purpose of the Buyer.
10.4. Except as provided for in this clause 10 Stocks shall have no liability for any defect in the quality of the Goods or their failure to correspond to any description or sample and all other conditions, warranties, stipulations and undertakings, whether express or implied by statute or common law are excluded.
10.5. Stocks shall not be liable for indirect loss or third party claims occasioned by delay in delivering the Goods or for any loss to the Buyer arising from delay in transit, whether as a result of Stocks’ negligence or otherwise.
10.6. Subject to clause 10.9, Stocks shall not be liable for any loss or damage howsoever caused, where the Goods are defective for any reason, including negligence, latent defect, inherent defect or such that may subsequently develop in the Goods supplied by Stocks.
10.7. Advice of damage, delay or partial loss of Goods in transit, non-delivery or of quantity shortages or excess must be given in Writing to Stocks within three days of delivery or performance (or in the case of non-delivery, twenty-eight days of despatch of the Goods) and any such claim must be made in Writing to Stocks within seven days of delivery or performance (or in the case of non-delivery within forty-two days of despatch). All other claims must be made in Writing to Stocks within two working days of delivery or performance. Subject to clause 10.9, Stocks shall not be liable in respect of any claim unless these requirements have been complied with except in any particular case where the Buyer proves that (i) it was not possible to comply with the requirements and (ii) advice (where required) was obtained and the claim made as soon as reasonably possible.
10.8. All Goods must be stored by the Buyer in suitable conditions and Stocks will not be liable to the Buyer for any defects brought about by the Buyer storing the Goods in unsuitable conditions.
10.9. Nothing in these Conditions shall exclude Stocks’ liability for death or personal injury as a result of its negligence or its liability resulting from fraud.
10.10. Stocks shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for:
10.10.1. any loss of profit or any consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (and whether caused by its negligence, employees or agents or otherwise) which arise out of or in connection with the supply of the Goods and/or the Services or their use or resale by the Buyer, except as expressly provided in these Conditions; and/or
10.10.2. the value of Goods defectively processed.
10.11. The Buyer shall indemnify Stocks against all loss, damages, cost and expenses awarded against or incurred by Stocks in connection with or paid or agreed to be paid by Stocks in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property right of any person or any other claim, liability, loss, damages, cost or expenses which results from Stocks’ use of any specification, materials or information supplied by the Buyer.
10.12. Stocks shall be under no liability whatsoever in respect of any advice it has given or views it has expressed whether or not such advice is given or such views expressed at the Buyer’s request.
10.13. Any suggestions or recommendations by Stocks for any person to act as an installer of the Goods are made in good faith but without any responsibility on the part of Stocks. No such installer shall be regarded as an agent of Stocks for any purposes whatsoever.
11. FORCE MAJEURE
11.1. Stocks shall not be in breach of contract or liable for any failure to carry out, or delay in carrying out, the Contract for any reason beyond its reasonable control, including act of God, legislation, war, fire, flood, drought, failure of power supply, lock out, strike or other action taken by employees in contemplation or furtherance of a dispute or due to any inability to procure materials required for the performance of the Contract, and, in the event of any such failure or delay, at its absolute discretion may elect:
11.1.1. to terminate the Contract; or
11.1.2. to proceed to continue performance under the Contract within a reasonable time after the termination of such events or circumstances and with such reasonable variation as shall be appropriate in the circumstances.
12. INSOLVENCY OF BUYER
If:
12.1. the Buyer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its 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) has any partner to whom any of the foregoing apply;
12.2. the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
12.3. (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 the winding up of the Buyer;
12.4. (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 the Buyer;
12.5. (being a company) the holder of a qualifying floating charge over the Buyer’s assets has become entitled to appoint or has appointed an administrative receiver;
12.6. a person becomes entitled to appoint a receiver over the Buyer’s assets or a receiver is appointed over the Buyer’s assets;
12.7. (being an individual) the Buyer is the subject of a bankruptcy petition or order;
12.8. a creditor or encumbrancer of the Buyer 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 its assets and such attachment or process is not discharged within 7 days;
12.9. any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1 to clause 12.8 (inclusive);
12.10. the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
12.11. (being an individual) the Buyer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation;
12.12. the Buyer’s financial position deteriorates to such an extent that in Stocks’ opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
12.13. Stocks reasonably believes that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly,
then, without prejudice to its other rights and remedies under these Conditions and/or at law, Stocks shall be entitled to terminate the Contract and/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 of them shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary
13. LIEN
Stocks shall be entitled to a general lien over all goods and property of the Buyer in its possession and shall be entitled on the expiration of fourteen days’ notice to dispose of such goods or property in such manner and at such price as it thinks fit and to apply the resulting sums against any sums owed to it.
14. GENERAL
14.1.The Contract is personal to the Buyer who may not assign, transfer, declare a trust in respect of or otherwise dispose of any of its rights under the Contract without Stocks’ consent in Writing signed by a duly authorised representative of Stocks.
14.2. With the exception in clause 14.6 nothing in these Conditions is expressly or impliedly intended to confer on any third party any right to enforce any of its provisions pursuant to the Contracts (Rights of Third Parties) Act 1999.
14.3. Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing and addressed to Stocks at its registered office and to the Buyer at the address given on its order or to such other address as may at the relevant time have been notified, in accordance with this clause, to the party giving notice.
14.4.No waiver by Stocks 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. No failure or delay by Stocks 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 prevent or restrict the further exercise of that or any other rights or remedy.
14.5. Any provisions of these Conditions which is held invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions of these Conditions.
14.6. Stocks may at its discretion perform its obligations and exercise its rights under the Contract through any other person and any such sub-contractors, agents and servants shall have the benefit of these Conditions.
14.7. The Contract is subject to the laws of England and Wales and the Buyer agrees for the benefit of Stocks to submit to the exclusive jurisdiction of the English Courts (including in respect of non-contractual disputes or claims).