ELITE BUILDING SUPPLIES LTD SALE
TERMS (GOODS AND SERVICES) MARCH 2018
Your attention is in particular drawn to terms 4 and 9.
If you are a consumer (as defined by the Consumer
Transactions (Restrictions on Statements) Order 1976) we recognise that you may
have additional rights under statute if we fail to carry out our obligations to
you and for the return of defective goods and confirm your statutory rights are
not affected by these terms.
Definitions and Interpretations
1.1 In these terms “we” or
“us” means the member company of the Elite Building Supplies Ltd specified in the contract for the sale of
goods and/or services to you; “you” means the person, firm or company who
purchases the goods and/or services from us; and “our” and “your” shall be
construed accordingly and “contract” means any order which has been accepted by
1.2 References to any statutory provision shall include (i)
any subordinate legislation made under it (ii) any provision which it has
modified or re-enacted and (iii) any provision which subsequently supersedes it
or re-enacts it.
Application of Terms
2.1 These terms apply to all sales of goods and/or services
by us to the exclusion of all other terms (including any which you purport to
apply) unless expressly agreed in writing in advance by one of our Directors.
2.2 Each order or acceptance of a quotation for goods
and/or services by you shall be deemed to be an offer by you to buy goods
and/or services subject to these terms. No order or acceptance of a quotation
by you shall be deemed to be accepted by us until written confirmation of order
is issued by us or (if earlier) we begin to process your order. We shall be
entitled to withdraw any quotation at any time (whether or not already accepted
2.3 You acknowledge that you have not relied on any
statement or representation made or given on our behalf. Any estimate of
quantities needed, advice as to the suitability of any goods for a particular
purpose and any plan or measurement given by us is given for guidance only
(based on your information) and without liability on our part. No allowance is
made by us for additional materials, wastage or installation. You must satisfy
yourself that all goods and/ or services ordered are correct.
2.4 Any typographical error or clerical omission in any
sales literature, quotation, price list or other document issued by us may be
corrected without liability on our part.
3. Description of Goods
3.1 The quantity and description of the goods are set out
in our quotation or confirmation of order. We may supply goods in either metric
or imperial sizes in the nearest equivalent measure and goods may be charged in
metric allowing for conversion.
3.2 All samples, drawings, descriptive matter,
specifications and advertising are issued or published for the sole purpose of
giving an approximate idea of the described goods. They shall not form part of
the contract and this is not a sale by sample. Each order shall be considered a
separate order and we are unable to guarantee that further orders for the same
goods will match the previous order.
3.3 Where fine or special tolerances are required in the
goods supplied beyond those generally accepted in the building trade, no
liability shall attach to us unless such tolerances are notified in writing to
us at the time of order and we have acknowledged in writing that we are
prepared to accept such order.
Delivery of Goods
4.1 Unless otherwise agreed by us, delivery of the goods
shall take place at our place of business. Delivery shall occur when you take
possession of the goods at our premises or (where we agree to deliver) when the
goods are ready for unloading at the delivery address.
4.2 Any dates and times we specify for delivery of the
goods are an estimate. We shall not be liable to you if we do not deliver on or
at any particular date or time. Time for delivery shall not be made of the
essence by notice.
4.3 If you fail to accept delivery of any goods when they
are ready for delivery, or we are unable to deliver the goods because you have
not provided appropriate instructions, documents or consents, we shall be
entitled to immediate full payment and risk in the goods shall pass to you. We
may store such goods until delivery and you shall be liable for all related
costs and expenses arising from such non delivery including transport and
storage costs. If you fail to accept delivery of the goods within 6 months of the
date of contract, we may sell or dispose of those goods (whether or not you
have paid for them). Storage or disposal costs shall be recoverable from you.
Any net proceeds of any sale shall be held on trust for you.
4.4 We will deliver to site provided that there is a
suitable road to the point where delivery is requested. If no such road exists,
delivery will be made to the nearest point at which, in the driver’s opinion,
the vehicle can safely and lawfully unload. Except where we use a
vehicle-mounted crane/ fork truck, you shall be responsible for safely and
lawfully unloading the goods and shall provide all necessary labour and
equipment. We may charge you an additional fee if you delay in taking delivery
of the goods when tendered. If any goods, packaging or container has been
delivered and deposited, whether on the public highway or elsewhere, you shall
be responsible for all steps that need to be taken for the protection of
persons or property in relation to such goods, packaging or containers and shall
indemnify us in respect of all or any costs, claims, losses or expenses which
we may incur as a result of such delivery.
4.5 We shall not
be liable for any shortages in quantity delivered unless you give written
notice to us of such shortages within two working days of delivery. In any
event our liability shall be limited to making good the shortfall or (at our
option) issuing a credit note or refund at the pro rata contract rate against
any invoice raised for such goods.
4.6 We may deliver the goods by separate instalments.
Each instalment shall be a separate contract and cancellation or termination of
one instalment shall not entitle you to cancel any other instalment.
4.7 Any query about delivery shall be made as soon as
possible and in any event within twenty eight days of the date when the goods
would in the ordinary course of events have been delivered else the goods shall
be deemed to have been delivered in accordance with the contract.
4.8 We shall not be responsible for taking back any
4.9 The cost of
any testing of the goods that we deem is necessary whether or not in your
presence, will be charged to you, unless prior written agreement has been
obtained from us. If you (or your representative) delay in attending such
tests, after seven days’ notice of the place and time of such tests, the tests
will proceed in your absence and shall be deemed to have been carried out in
Risk and Ownership of Goods
5.1 The goods are at your risk from the time of delivery
or deemed delivery.
5.2 Ownership of the goods shall not pass to you until we
have received in full (in cleared funds) all sums due to us in respect of the
goods and all other sums which are or become due to us from you on any account
or (if later) the time of delivery.
5.3 Until ownership of the goods has passed to you, you
shall hold the goods on a fiduciary basis as our bailee and store the goods (at
no cost to us) in satisfactory condition and in such a way that they remain
readily identifiable as our property and you shall tell us immediately where
the goods are situated.
5.4 Subject to 5.5, you may resell the goods before
ownership has passed to you provided that any sale shall be effected in the
ordinary course of your business at full market value and you shall deal as
principal; you shall hold all proceeds of sale on trust for us and assign to us
all rights and claims which you may have against your customer arising from
such sales until full payment is made.
5.5 Your right to
possession of, and authority to sell, the goods shall terminate immediately
(and you shall immediately deliver the goods to us at your cost and risk) if we
notify you to such effect or on the happening of any event set out in
10.3(a)-(i) (whichever is earlier) and you shall immediately notify us in
writing upon the happening of any such event.
5.6 You grant to us and our agents an irrevocable licence
at any time to enter any premises (with and without vehicles) where the goods
are or may be stored in order to inspect them or, where your right to
possession has terminated, to recover them.
5.7 Where we are unable to determine whether any goods
are the goods in respect of which your right to possession has terminated, you
shall be deemed to have sold all goods of the kind sold by us to you in the
order in which they were invoiced to you.
Provision of Services
6.1 Where the goods supplied include services by us, our
agents or subcontractors, you shall (where necessary) allow us safe and
reasonable access to the site within our normal working hours to carry out the
6.2 The price quoted for such services assumes that:
(a) the site is ready and suitable for the services to
commence at the agreed time;
(b) the services are to be carried out within our normal
(c) suitable site access is available at all times; and
mechanical lifting equipment is provided by you in the event that the services
are to be carried out above ground level. If any of these assumptions proves
incorrect, we shall be entitled to vary the price.
6.3 You shall
provide a safe environment and all necessary consents, information, and
resources for us, our agents and subcontractors to carry out the services.
6.4 In relation to any installation services, you are
responsible for insuring the goods (whether before or after installation) and
shall notify your insurers that we will be carrying out such services on site.
You must protect carpets, furniture and all other items.
6.5 Any dates and times we specify for commencement and
completion of the services are an estimate. We shall not be liable if we do not
carry out the services on or at any particular date or time. Time for
performance shall not be made of the essence by notice.
6.6 If we provide design services, all copyright and
other intellectual property rights created, developed or used shall remain the
sole property of us or our licensors.
Price and Additional Charges
7.1 Unless we otherwise agree in writing, the price
payable for the goods and/or services shall be the price applicable on the date
of delivery or deemed delivery for goods and the date the services are carried
out for services.
7.2 The price for the goods and/or services shall be
exclusive of any value added tax, which shall be payable by you at the rate
applicable at the tax point.
7.3 We may at any
time after acceptance of an order, but prior to delivery, revise the price
payable for the goods and/or services to take account of increases in costs
including, without limitation, costs of any goods or materials, carriage,
labour or overheads, the increase or imposition of any tax duty or other levy
and variation in exchange rate.
7.4 Unless we otherwise agree in writing, we may charge
you the cost of delivering the goods to you.
7.5 We may charge for any special packaging to cover the
cost of labour and materials. We will charge for pallets, crates and cases but
these charges will be credited in full if such items are returned to us
carriage paid and in good condition within seven days of delivery. Where we
agree to collect such pallets, crates and cases, you shall make such items
available for collection on request.
8. Payment and Interest
8.1 Payment for goods and/or services supplied on a
credit account shall be due not later than the last day of the month following
the month of delivery or deemed delivery of the goods and/or services. If you
default in making payment, the entire balance of your account shall be payable
immediately and we may charge interest, together with costs and expenses, in
accordance with 8.4.
8.2 For non credit
account purchases, payment shall be with the order or, at our discretion, on
delivery or deemed delivery.
8.3 Time for payment shall be of the essence. You shall
make all payments in pounds sterling and in full without any deduction.
8.4 If you fail to
pay us any sum due (and whether or not any part of your account is subject to
query), we may, in addition to our rights under 10.3, appropriate any payment
made by you to such of the goods and/or services (or such goods or services
supplied under any other contract between you and us) as we may think fit; and
you shall be liable to pay us interest on such sum at the annual rate of 7%
above the base lending rate from time to time of the National Westminster
Bank Plc, accruing on a daily basis, or,
at our option, interest in accordance with the Late Payment of Commercial Debts
(Interest) Act 1998 (as amended and supplemented by the Late Payment of
Commercial Debts Regulations 2002) from the due date for payment until payment
is made in full, whether before or after any judgment, together with all costs
and expenses incurred by us in recovering sums due or exercising our rights
under this provision, including our debt recovery fees at a rate of 6% of the total
8.5 Credit accounts may only be opened at our discretion
and are subject to satisfactory references. We may set a maximum amount of
credit allowable upon each account and withdraw credit facilities without
explanation. You agree that we may obtain, retain, and provide to third
parties, references as to your financial standing. Any change in the
constitution of your organisation must be notified to our Head Office Credit
Services Department in writing prior to it occurring in order that credit
facilities to the reconstituted organisation may be put in place, subject
always to our discretion and our confirmation in writing. Until new credit
facilities are agreed, the existing entity and any new entity shall be jointly
and severally liable for any debt due to us.
9.1 If any goods
or services are defective due to defective workmanship or material, we shall
(at our option) repair or replace such goods (or the defective part) or rectify
the defective service or refund the price of such defective goods or services
at the pro rata contract rate provided that:
(a) you give us written notice of the defect within seven
days of the date of delivery or completion of the services or, in the case of a
defect which is not discoverable upon reasonable examination, within seven days
of the time when you discover or ought to have discovered the defect (and in
any event within twelve months from the date of delivery or completion of the
(b) we are given a
reasonable opportunity after receiving notice to examine such goods and/or
services (in situ) and (if asked to do so by us) you return such goods to our
place of business for the examination to take place there;
(c) you do not make any further use of such goods after
giving such notice;
(d) the defect is not due to wilful damage, negligence
(other than ours), fair wear and tear, alteration or repair of such goods
without our prior written consent or incorrect storage, application, movement,
installation, commissioning, use or maintenance of the goods (other than by
(e) the defect is not due to any act or omission of you,
your agents or contractors.
9.2 Our entire liability for defective goods and services
is set out in 9.1 and in particular we shall not be responsible for either the
cost of removing the goods from any place where they are installed or fixed (or
making good the place after removal) or for the cost of installing or fixing
any repaired or replacement goods unless due to our defective service.
9.3 On request, we
will provide information about any manufacturer’s guarantee offered and
available to you in respect of the goods but we are not legally responsible for
any obligation under manufacturer’s guarantees. Where the goods contain a
warranty or guarantee offered by us please refer to the special conditions
applicable on our website or available upon request.
9.4 Save as expressly set out in these terms, all
warranties and other terms implied by statute or common law (save for the term
implied as to title) are, to the fullest extent permitted by law, excluded from
9.5 Our total liability in contract, tort (including
negligence or breach of statutory duty), misrepresentation, restitution or
otherwise, arising in connection with the performance or contemplated
performance of the contract shall be limited to the contract price.
9.6 We shall not be liable to you for any pure economic
loss, loss of profit, loss of business, depletion of goodwill or loss of
anticipated savings, in each case whether direct, indirect or consequential, or
any other indirect losses whatsoever and howsoever caused.
9.7 Nothing in
these terms excludes or limits our liability for
(a) death or
personal injury caused by our negligence,
(b) fraud or fraudulent misrepresentation; and
(c) any other matter which it would be illegal for us to
9.8 Where goods are manufactured in compliance with any
designs, specifications or drawings supplied by you or your customer, you shall
indemnify us against all proceedings, costs, claims, losses or demands in
respect of any infringement or alleged infringement of any intellectual
property rights whatsoever of third parties in any part of the world.
Cancellations and Returns
10.1 We may, at
our discretion, accept or reject the cancellation of any contract or the return
of any goods not required. Any such cancellation or return shall be on such
terms as we specify and in particular we may charge you a handling fee and all
costs incurred on cancelled Orders.
10.2 Where you are
a “consumer” under a “distance contract” (both as defined in the Consumer
Contracts (Information, Cancellation & Additional Charges) Regulations
2013) you may cancel a contract within fourteen days after the date the goods
are delivered. You must return the goods to the branch from which they were
delivered or request us to collect the goods, at your cost. This term shall not
apply to any goods specially obtained or made for you or which are liable to
deteriorate or expire rapidly. Any refund will only include standard delivery
charges (where relevant).
10.3 We shall be entitled to cancel or suspend a contract
if you fail to pay us any sum due pursuant to the contract (whether or not any
part of your account is subject to query) or any of the following events occurs
or we believe is likely to occur:
(a) you have a
bankruptcy order made against you or make an arrangement or composition with
your creditors, or otherwise take a benefit for the relief of insolvent
(b) you convene a meeting of creditors or enter into
(c) you have a receiver and/or manager, administrator or
administrative receiver appointed over your undertakings or any part; or
(d) a resolution is passed or a petition presented to any
court for your winding-up or for the granting of an administration order in
your respect, or any proceedings are commenced relating to your insolvency or
possible insolvency; or
(e) you suffer or allow any execution, whether legal or
equitable, to be levied on your property or obtained against you, or
(f) you are unable to pay your debts within the meaning
of section 123 of the Insolvency Act 1986 or you cease to trade; or
(g) any event similar to the above occurs; or
(h) you fail to
observe or perform any of your obligations under the contract or any other
contract between us and you; or
(i) you encumber or in any way charge any of the goods.
Health and Safety
Certain goods supplied by us could, if incorrectly used,
give rise to risks to health and safety. Information in respect of such goods
is available from us. You undertake that you will ensure compliance by your
employees, agents and customers with any instructions given by us or the
manufacturer or our supplier and will take any other steps or precautions,
having regard to the nature of the goods, as are necessary to preserve the
health and safety of any person handling, using or disposing of them.
You will be responsible for the disposal of any waste
arising from the goods and will comply with all applicable laws, regulations
and waste management licences relating to such waste, including the appropriate
disposal by you of any goods marked with a crossed out wheelie bin symbol, save
where you are a consumer and it is our responsibility at law. You will indemnify
us against all costs, claims, liabilities and expenses arising from any breach
by you of this provision.
We may defer the
date of delivery, cancel the contract or reduce the volume of the goods and/or
services ordered by you (without liability to you) if we are unable to deliver
or supply due to any cause beyond our reasonable control (including the acts or
omissions of our suppliers and subcontractors).
Export / Overseas Contracts (if applicable)
In relation to goods sold outside the UK, the Channel
Islands and the Isle of Man, risk in the goods shall pass to you when they
leave our premises. Shipping and insurance shall be payable by you but will be
managed by us unless otherwise agreed. You are responsible at your own expense
for obtaining any licence and complying with any export or import regulations
in force within the UK and any country for which the goods are destined. We
reserve the right not to supply certain customers or countries and to require
from you full details of the end use and final destination of the goods.
Compliance with Bribery Legislation
You agree that you will not, in connection with the goods
or services to be supplied under this contract, bribe or attempt to bribe us,
or any of our employees, agents or affiliates nor cause us to be in violation
of any applicable bribery or anti money laundering laws. We may terminate the
contract in the event of your breach of this clause. You shall indemnify us
against all liabilities, costs, expenses, damages, claims, demands and losses
suffered or incurred by us arising out of or in connection with any breach of
this clause, whether or not the contract has been terminated.
16.1 Any notices
given pursuant to or in relation to the contract shall be in writing and
addressed to the party concerned at its principal place of business or last
known address. Any notice shall be deemed delivered two days after posting or
on the next working day after fax transmission.
16.2 Any provision of the contract found to be invalid or
unenforceable shall, to such extent, be deemed severable and the remaining
provisions of the contract shall continue in full force and effect.
16.3 Failure or delay by us in enforcing any contract
term shall not be construed as a waiver of any of our rights under the
16.4 You shall not be entitled to assign or subcontract
any of your rights or obligations under the contract.
16.5 Any dispute or claim arising in connection with the
contract shall be governed by English law and the parties submit to the
exclusive jurisdiction of the English courts, save that if you are domiciled in
Scotland (within the meaning of the Civil Jurisdiction and Judgments Act 1982)
then the contract shall be construed in accordance with Scottish law and shall
be subject to the exclusive jurisdiction of the Scottish courts.