These Terms do not apply if you deal as a Consumer
5.13 We will not complete a delivery if You are not present unless instructed by You.
5.14 You will indemnify us in respect of all costs claims losses or expenses we may incur as a result of delivery in accordance with your instructions. This indemnity will be reduced in proportion to the extent that such costs claims losses or expenses are due to our negligence.
6.1 You shall inspect the Goods at the place and time of unloading or collection but nothing in these Terms shall require you to break packaging and/or unpack Goods which are intended to be stored before use.
6.2. 6.2.1 You must advise us by telephone immediately and give Us written notice within three working days of unloading of any claim for short delivery.
6.2.2 If you do not give us that notice within that time the Goods will be deemed to have been delivered in the quantities shown in the delivery documents.
6.2.3 You shall not be entitled and irrevocably and unconditionally waive any right to reject the Goods or claim any damages whatsoever for short delivery however caused.
6.2.4 Our liability for short delivery is limited to making good the shortage.
6.3. 6.3.1 Where it is or would have been apparent on a reasonable inspection that the Goods are not in conformity with the Contract or (where the Contract is a contract for sale by sample) that the bulk does not compare with the sample You must advise Us by telephone immediately and give us written notice within three working days of inspection.
6.3.2 If you fail to give us that notice within that time the Goods will be deemed to have been accepted and you shall not be entitled and irrevocably and unconditionally waive any right to reject the Goods.
6.3.3. If you fail to give us that notice within that time Clause 8 shall have effect.
7. TITLE AND RISK
7.1 Risk in the Goods shall pass to you when the Goods are delivered.
7.2 The property in the Goods shall remain with us until you pay all sums due to us whether in respect of this Contract or otherwise.
7.3 Until title passes:-
7.3.1 You shall hold the Goods as our fiduciary agent and bailee.
7.3.2 The Goods shall be stored separately from any other goods and you shall not interfere with any identification marks labels batch numbers or serial numbers on the Goods.
7.3.3 We agree that You may use or agree to sell the Goods as principal and not as agents in the ordinary course of your business subject to the express condition that at our direction the entire proceeds of any sale or insurance proceeds received in respect of the Goods are held in trust for Us and not mixed with any other monies or paid into an overdrawn bank account and shall at all times be identifiable as our money.
7.4 We shall be entitled at any time to recover any or all of the Goods in your possession to which We have title and for that purpose We our employees or agents may with such transport as is necessary enter upon any premises occupied by You or to which You have access and where the Goods may be or are believed to be situated.
8.1 Nothing in these Terms shall exclude or restrict our liability for death or personal injury resulting from our negligence or our liability for fraudulent misrepresentation.
8.2 Subject to Clause 8.1 of these Terms We shall not be liable by reason of any misrepresentation (unless fraudulent) or any breach of warranty condition or other term express or implied or any breach of duty (common law or statutory) or negligence for any damages whatsoever .Instead of liability in damages we undertake liability under Clause8.3 below.
8.3 Where but for the effect of Clause 8.2 of these Terms You would have been entitled to damages against Us We shall not be liable to pay damages but subject to the conditions set out in Clause8.4 below shall in our sole discretion either repair the Goods at our own expense or supply replacement Goods free of charge or refund all (or where appropriate part) of the price paid for the relevant Goods.
8.4 We will not be liable under Clause 8.3
8.4.1 If the Defect arises from fair wear and tear.
8.4.2 If the Defect arises from wilful damage negligence abnormal working conditions miss-use alteration or repair of the Goods failure to follow British Standard or industry instructions relevant to the Goods or storage of the Goods in unsuitable conditions (but this sub-clause shall not apply to any act of omission on our part).
8.4.3 Unless after discovery of the Defect we are given a reasonable opportunity to inspect the Goods before they are used or in any way interfered with. For the avoidance of doubt we acknowledge that the costs of suspending works are relevant to the determination of what is a reasonable opportunity and this sub-clause shall not apply to any works affecting the Goods which it may be reasonably necessary to carry out in the interests of safety and/or as emergency measures.
8.4.4 If the Defect would have been apparent on a reasonable inspection under Clause 6.1 of these Terms at the time of unloading unless You advise Us by telephone immediately and written notice of any claim is given to Us within three working days of the time of unloading or in any other case.
8.4.5 The Defect is discovered within four months from the date of delivery and we are given written notice of the Defect within three working days of it being discovered.
8.5 If the Goods are not manufactured by Us or have been processed or milled by a third party whether or not at our or your request our liability in respect of any defect in workmanship or materials of the Goods will be limited to such rights against the manufacturer or the third party as We may have in respect of those Goods.
8.6 If the Goods are manufactured processed or milled by us to the design quantity measurement or specification of you or your agents then:
8.6.1 Subject to Clause 8.1 of these terms we shall not be under any liability for damages whatsoever or under Clause 8.3 of these Terms as the case may be except in the event of:
184.108.40.206 Fraudulent misrepresentation
220.127.116.11 Misrepresentation where the representation was made or confirmed in writing by a Company Signatory.
18.104.22.168 Non-compliance with design quantity measurement or specification.
22.214.171.124 Breach of a written warranty signed by a Company Signatory that the Goods are fit for that purpose; or
126.96.36.199 A claim maintainable against us pursuant to Clause 8.1 of these Terms.
8.6.2 You will unconditionally fully and effectively indemnify Us against all loss damages costs on an indemnity basis and expenses awarded against or incurred by Us in connection with or paid or agreed to be paid by Us in settlement of any claim for infringement of any patents copyright design trademark or any other industrial or intellectual property rights of any other person.
8.6.3 You will further unconditionally fully and effectively indemnify Us against all loss damages costs on an indemnity bases and expenses awarded against or incurred by Us in connection with or paid or agreed to be paid by Us in settlement of any other claim arising from any such manufacturing processing or milling including but not limited to any Defect in the Goods. This indemnity will be reduced in proportion to the extent that such loss damage costs and expenses are due to our negligence.
8.7 You will unconditionally fully and effectively indemnify us against all loss damages costs on an indemnity basis and expenses awarded against or incurred by us in connection with or paid or agreed to be paid by us in settlement of any claim by any third party arising from the supply or use of the Goods. This indemnity will be reduced in proportion to the extent that such loss damage costs and expenses are due to our negligence.
8.8 Without prejudice to any other provisions in these Terms in any event our total liability for any one claim or for the total of all claims arising from any one act of default on our part (whether arising from our negligence or otherwise) shall not exceed the purchase price of the goods the subject matter of any claim.
9.1 ""Insolvent"" means You becoming unable to pay your debts within the" meaning of Section 123 of the Insolvency Act 1986; the levying of the threat of execution or distress on any of your property: the appointment of a receiver or administrative receiver over all or part of your property; a proposal for a voluntary arrangement or compromise between You and your creditors whether pursuant to the Insolvency Act 1986 or otherwise the passing of a resolution for voluntary winding-up or summoning a meeting to pass such a resolution otherwise than for purposes of a bona fide amalgamation or reconstruction; the presentation of a petition for your winding-up or for an administration order in relation to You; if You suffer any analogous step or proceeding under foreign law or you ceasing or threatening to cease to carry on your business.
9.2 If you fail to pay the price for any Goods on the due date or fail to pay any sum due to Us under any contract on the due date or You become Insolvent or if You are a Limited Company or partnership and there is a material change in your constitution or You commit a material breach of this contract and fail to remedy that breach all sums outstanding between You and we shall become immediately payable and we shall be entitled to do any one or more of the following (without prejudice to any other right or remedy we may have):-
9.2.1 Require payment in cleared funds in advance of further deliveries
9.2.2 Cancel or suspend any further deliveries to you under any contract without liability on our part
9.2.3 Without prejudice to the generality of Clause 7 of these Terms exercise any of our rights pursuant to that clause.
9.3 If We take proceedings to enforce our rights under this Contract including but not limited to recovery of any sums due You will reimburse us for all collection costs incurred.
10.1 This Contract shall be governed and interpreted according to the Law of England and Wales and you agree to submit to the non-exclusive jurisdiction of the English Courts.
10.2 We shall not be liable for any delay or failure to perform any of our obligations in relation to the Goods due to any cause beyond our reasonable control including industrial action.
10.3 The waiver by us of any breach or default of theses Terms shall not be construed as a continued waiver of that breach nor as a waiver of any subsequent breach of the same or any other provision.
10.4 If any clause or sub-clause of these Terms is held by a competent authority to be invalid or unenforceable the validity of the other clauses and sub- clauses of these Terms shall not be affected and they shall remain in full force and effect.
10.5 We may assign novate or sub contract all or part of this Contract and You shall be deemed to consent to any novation. This Contract is personal to you and it may not be assigned.
11. YOUR RIGHTS OF CANCELLATION.
If this contract was concluded exclusively by means of distance communication (including but not limited to telephone, letter, fax or email), and you are a natural person acting outside the purposes of you business, the following rights will apply:-
11.1 You may cancel your contract with us for the goods you order at any time up to the end of the seventh working day from the date you receive the ordered goods. You do not need to give us a reason for cancelling your contract nor will you have to pay a penalty,
11.2 To cancel your contract you must notify your local branch in writing where the order was placed. (Notice of cancellation will not be accepted by telephone, facsimile or email).
11.3 If you cancel your contract but we have already processed the goods for delivery, you must not unpack the goods when they are received by you and you must send the goods back to us at our contact address at your own cost and risk or arrange for us to collect the goods from the place where they were delivered at a reasonable time to suit us at your cost as soon as possible (and in any event with (14) days of notice of cancellation).
11.4 Once you have notified us that you are cancelling your contract, any sum debited to us from your credit card will be re-credited to your account as soon as possible and in any event within 30 days of your order PROVIDED THAT the goods in question are returned by you and received by us in the condition they were in when delivered to you. If you do not return the goods delivered to you or do not pay the costs of delivery/collection, we shall be entitled to deduct the direct costs of recovering the goods from the amount to be reimbursed to you.