J.M.G. Bathroom Heating And Plumbing Supplies LTD.
Standard Terms And Conditions Of Sale
1.1. The definitions and rules of interpretation in this condition apply in these conditions.
Buyer: The person, firm or company who purchases the Goods from JMG.
Company: JMG Bathrooms Heating and Plumbing Supplies Limited.
Contract: Any contract between JMG and the Buyer for the sale and purchase of the Goods, incorporating these conditions.
Delivery Point: the place where delivery of the Goods is to take place under condition 4.
Goods: any goods agreed in the Contract to be supplied to the Buyer by JMG.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1. Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2. No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3. These conditions apply to all JMG’s sales and any variation to these conditions and any representations about the goods shall have no effect unless expressly agreed in writing and signed by one of JMG directors. The buyer acknowledges that it has not relied on any statement, warranty, promise or representation made or given by or on behalf of JMG which is not set out in the Contract. Nothing in this condition shall exclude or limit JMG’s liability for fraudulent misrepresentation.
2.4. Each order or acceptance of a quotation for Goods by the Buyer from JMG shall be deemed to be an offer by the Buyer to purchase Goods subject to these conditions
2.5. No order placed by the Buyer shall be deemed to be accepted by JMG until a receipt is issued by JMG or (if earlier) JMG delivers the Goods to the Buyer.
2.6. The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7. Any quotation is given on the basis that no Contract shall come into existence until JMG issues a receipt to the Buyer. Any quotation is valid for a period of 30 days only from its dates, provided that JMG has not previously withdrawn it.
3.1 The quantity and description of the Goods shall in all material respects be as set out in JMG’s quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by JMG and any descriptions or illustrations contained in JMG’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
4.1. Unless otherwise agreed in writing by JMG, delivery of the Goods shall take place at the Company’s place of business.
4.2. The buyer shall take delivery of the Goods within 14 days of JMG giving it notice that the Goods are ready for delivery. If Goods are not delivered or are collected after this time, the Buyer may be liable for handling and/or storage costs.
4.3. Any dates specified by JMG for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are specified, delivery shall be within a reasonable time.
4.4. Subject to the other provisions of these conditions JMG shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by JMG’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.5. If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or JMG is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
a) Risk in the Goods shall pass to the buyer (including for loss or damage caused by the JMG’s negligence);
b) The Goods shall be deemed to have been delivered; and
c) JMG may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.6. Unless JMG has agreed, in writing, to deliver the Goods to an address of the Buyer’s choice, the Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
4.7. JMG may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.8. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
4.9. All goods delivered by JMG will be to ground floor level only.
5. LOSS, SHORTAGES AND DAMAGE APPARENT ON DELIVERY INSPECTIONS
5.1. The Buyer shall have no claim for loss, shortages or damage on delivery which are or would be apparent on inspection unless the Buyer:
a) Unpacks and inspects the Goods as soon as reasonably practicable following receipt;
b) Notifies JMG of any loss shortages or damage (otherwise than by a qualified signature on the delivery note) as soon as reasonably practicable and in any event within 24 hours of receipt; and
c) Demonstrates to the satisfaction of JMG that such loss shortage or damage occurred prior to delivery.
5.2. The Buyer shall have no rights in respect of loss, shortages or damage unless JMG is given a reasonable opportunity to inspect the Goods and investigate any complaint before any use of or alteration to or interference with the Goods.
5.3. On a valid complaint, made in accordance with this Clause, the Buyer shall be entitled (in the case of notified shortages) to receive within a reasonable time a delivery of Goods equivalent to the shortfall and (in the case of defects) to repairs to or replacements of the affected Goods or at JMG’s option, a credit for the price thereof but JMG shall have no further liability whatsoever. If a complaint of loss, shortages or damage on delivery is not made to JMG in accordance with this Clause 5 then the Goods shall be deemed to be delivered complete and undamaged in accordance with the contract and the Buyer shall be bound to pay for the same accordingly.
5.4. Loss, shortages or damage in a delivery or any instalment delivery shall not be a ground for termination of the contract or the remainder of the contract (as the case may be).
6. RETURNS & RE-STOCKING FEES
6.1. Items ordered may be returned by the Buyer within 7 days of delivery or collection, entirely at JMG’s discretion, but such return will be subject to a re-stocking fee of between 10 and 50 per cent of the purchase price of the Goods, the exact percentage to be dependent on the handling fee payable by the Company to the manufacturer.
6.2. Unless faulty, all postage costs will be the responsibility of the Buyer.
6.3. Bespoke, made to order Goods, cannot be returned unless they are faulty under the terms of the warranty at clause 10.
6.4. Baths, unless faulty, cannot be returned or exchanged under any circumstance.
7.1. The Goods are at the risk of the Buyer from the time of delivery.
7.2. Ownership of the Goods shall not pass to the Buyer until JMG has received in full (in cash or cleared funds) all sums due to it in respect of:
a) The Goods; and
b) All other sums which are or which become due to JMG from the Buyer on any account.
7.3. Until ownership of the Goods has passed to the Buyer, the Buyer shall:
a) Hold the Goods on a fiduciary basis as JMG’s bailee;
b) Store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third part in such a way that they remain readily identifiable as JMG’s property.
c) Not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
d) Maintain the Goods in satisfactory condition and keep them insured on JMG’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the company.
7.4. The Buyer may resell the Goods before ownership has passes to it solely on the following conditions:
a) Any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
b) Any such sale shall be a sale of JMG’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
7.5. The Buyer’s right to possession of the Goods shall terminate immediately if:
a) The buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer;
b) The Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between JMG and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
c) The Buyer encumbers or in any way charges any of the Goods.
7.6. JMG shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
7.7. The Buyer grants JMG, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
7.8. Where JMG is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by JMG to the Buyer in the order in which they were invoiced to the Buyer.
7.9. On termination of the Contract, howsoever caused, JMG’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.
8.1. The price for the Goods shall be the price agreed at the time the Goods are ordered. The prices published in the Company’s Price Guides are for guidance only and are not to be relied upon.
8.2. The price for the Goods shall be inclusive of any value added tax but exclusive of all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
9.1. Subject to condition 9.4, unless otherwise agreed by JMG in writing, payment of the price for the Goods is due in pounds sterling and shall be made at the time the Goods are ordered, or for customers with a trade account, within 30 days from the date of delivery.
9.2. Time for payment shall be of the essence.
9.3. No payment shall be deemed to have been received until JMG has received cleared funds.
9.4. All payments payable to JMG under the Contract shall become due immediately on its termination despite any other provision.
9.5. The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by JMG to the Buyer.
9.6. If the Buyer fails to pay JMG any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to JMG on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Lloyds Bank Plc accruing on a daily basis until payment is made, whether before or after any judgment. The company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
10.1. Where JMG is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
10.2. JMG warrants that (subject to the other provisions of these conditions) upon delivery, and for a period of 12 months from the date of delivery, the Goods shall:
a) Be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
b) Be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to JMG in writing and JMG has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgment of the Company.
10.3. JMG shall not be liable for a breach of either warranty in condition 10.2 unless:
a) The Buyer gives written notice of the defect to JMG, within 24 hours of delivery to the Buyer or collection by the Buyer from the JMG’s premises.
b) JMG is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by JMG) returns such Goods to the JMG’s place of business at the JMG’s cost for the examination to take place there; and
c) The defect does not consist of a loss shortage or damage to which Clause 5 applies;
10.4. JMG shall not be liable for a breach of either warranty in condition 10.2 is:
a) The Buyer makes any further use of such Goods after giving such notice; or
b) The defect arises because the Buyer failed to follow any manufacturer’s instructions for use of the goods, or, where given, JMG’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods, or (if there are none) good trade practice; or
c) The Buyer alters or repairs such Goods without the written consent of JMG.
10.5. Subject to condition 10.3 and condition 10.4, if any of the Goods do not conform with the warranty in condition 10.2 JMG shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if JMG so requests, the buyer shall, at JMG’s expense, return the Goods or the part of such Goods which is defective to JMG.
10.6. If JMG complies with condition 10.5 it shall have no further liability for a breach of either of the warranties in condition 10.2 in respect of such Goods.
10.7. Any Goods replaced shall belong to JMG and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 12 month period.
11. LIMITATION OF LIABILITY
11.1 Subject to condition 4, condition 5 and condition 10, the following provisions set out the entire financial liability of JMG (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) Any breach of these conditions;
(b) Any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) Any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Acts 1979) are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these conditions excludes or limits the liability of JMG:
a) For death or personal injury caused by JMG’s negligence; or
b) Under section 2 (3), Consumer Protection Act 1987; or
c) For any matter which it would be illegal for JMG to exclude or attempt to exclude its liability; or
d) For fraud or fraudulent misrepresentation.
11.4 Subject to condition 11.2 and condition 11.3:
a) JMG’s 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; and
b) JMG shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
12.1. JMG may assign the Contract or any part of it to any person, firm or company.
12.2. The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of JMG
13. FORCE MAJEURE
JMG reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of JMG included, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 60 days, the Buyer shall be entitled to give notice in writing to JMG to terminate the Contract.
14.1. Each right or remedy of JMG under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
14.2. If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
14.3. Failure or delay by JMG in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
14.4. Any waiver by JMG of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
14.5. The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.6. The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties hereby submit to the exclusive jurisdiction of the English courts.
15.1. All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:
a) (in case of communications the JMG) to its registered office or such changed address as shall be notified to the Buyer by JMG; or
b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to JMG by the Buyer.
15.2. Communications shall be deemed to have been received:
a) If sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
b) If delivered by hand, on the day of delivery; or
c) If sent by fax on a working day prior to 4:00 pm, at the time of transmission and otherwise on the next working day.
15.3. Communications addressed to JMG shall be marked for the attention of either Martin Guidery or Christina Guidery.