Terms & Conditions
SPOTNAILS LTD
Supply of Goods Terms & Conditions
1. INTERPRETATION
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 13.3.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: an event or circumstance beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer's order for the Goods, as set out in the Customer's purchase order form or as verbally received by the Supplier’s sales
representatives or telesales team and confirmed in writing.
Specification: any specification for the Goods that is agreed in writing by the Customer and the Supplier.
Supplier: Spotnails Limited (registered in England and Wales with company number 03135591).
Supplier’s Premises: has the meaning given in clause 4.3.
1.2 Interpretation:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors and permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.5 A reference to writing or written includes email.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence. The Supplier reserves the right to refuse to accept any Order.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 Any samples or advertising produced by the Supplier, and any information, application uses, details and descriptions contained in the Supplier's sales and marketing material, are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force. In particular, the Customer is responsible for determining whether the Goods are suitable for any particular use.
2.6 The Customer should read all safety manuals and safety instructions provided with the Goods and follow them carefully at all times.
2.7 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
3. GOODS
3.1 The Goods are described in the Supplier's sales and marketing material as modified by any applicable Specification.
3.2 The Supplier reserves the right to amend the specification of the Goods, or any applicable Specification, if required by any applicable statutory or regulatory requirements.
4. DELIVERY
4.1 The Supplier shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the purchase order number (where supplied), the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2 if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location). Details of the Supplier’s delivery charges are set out in the Supplier’s sales and marketing material.
4.3 Alternatively, and if agreed in writing between the parties, the Customer may collect the Goods from the Supplier's premises at Unit 14, Pantglas Industrial Estate, Caerphilly, CF83 8DR or such other location as may be advised by the Supplier prior to delivery (Supplier’s Premises).
4.4 Delivery is completed on completion of the unloading of the Goods at the Delivery Location or, if it is agreed that the Customer shall collect the Goods from the Supplier’s Premises, on completion of the loading of the Goods at the Supplier’s Premises.
4.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 The Supplier will use reasonable endeavours to deliver the Goods within any dates quoted for delivery.
4.7 If the Customer fails to accept delivery of the Goods, or if the Customer fails to collect the Goods from the Supplier’s Premises within 10 Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:
4.7.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the first Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
4.7.2 the Supplier shall continue to store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.8 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, or collected the Goods from the Supplier’s Premises, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
4.9 If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them.
4.10 If the Customer orders the wrong Goods, over-orders and/or wishes to return part of the Goods, the Customer shall be charged a 15% re-stocking fee plus the cost of delivery of the return.
4.11 If the Customer wishes to return Goods, it shall use a registered shipping service which provides a means of tracking the shipment. The Customer shall notify the Supplier in writing of its intention to return the Goods and the Supplier shall issue the Customer with a returns number. Any returns should be made without undue delay and in any event not later than 5 days after receipt of the Goods. The Customer shall leave a note inside the packaging of all returns providing a brief explanation of the reason for the return and sufficient details to enable the Supplier to identify the Order, including the invoice number and returns number.
4.12 The Supplier may, if agreed in writing between the parties, deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. RIGHT TO CANCEL
5.1 The Customer will be invoiced on despatch of the goods but the Customer has the right to cancel the Order and receive a full refund for the purchase price of the Goods at any time before the Goods are delivered, or within 7 Business Days of delivery, by notice in writing to the Supplier.
5.2 Where Goods have already been delivered to the Customer, the right to cancel in this clause shall only apply provided:
5.2.1 the Goods are still in a re-saleable condition once returned to the Supplier;
5.2.2 the Supplier recovers all packaging to the Goods; and
5.2.3 the Goods are returned to the Supplier at the Customer’s cost and in accordance with clause 4.12.
6. QUALITY
6.1 The Supplier warrants that on delivery the Goods shall:
6.1.1 conform in all material respects with their description and any applicable Specification; and
6.1.2 be free from material defects in design, material and workmanship.
6.2 The Customer shall check the Goods as soon as reasonably possible following delivery. Subject to clause 6.4, if:
6.2.1 the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 1;
6.2.2 the Supplier is given a reasonable opportunity of examining such Goods (if requested by the Supplier); and
6.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Supplier's cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.3 The Supplier shall only be responsible for the costs of returning defective Goods if the Customer retains all packaging to the Goods, or otherwise ensures that the Goods are adequately packaged.
6.4 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 6.1 in any of the following events:
6.4.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 6.2;
6.4.2 the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
6.4.3 the Customer alters or repairs such Goods without the written consent of the Supplier;
6.4.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
6.4.5 the Goods differ from their description or any Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.5 Except as provided in this clause, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6.1.
6.6 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.
6.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods, including all delivery charges.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
7.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4; and
7.3.5 give the Supplier such information relating to the Goods as the Supplier may reasonably require from time to time.
7.4 Subject to clause 7.5 and only with the express written agreement of the Supplier, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. If the Customer resells the Goods before that time:
7.4.1 it does so as principal and not as the Supplier’s agent; and
7.4.2 title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
7.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4, then, without limiting any other right or remedy the Supplier may have:
7.5.1 the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
7.5.2 the Supplier may at any time:
(a) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8.0 PRICE AND PAYMENT
8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price previously agreed between the Customer and Supplier for identical orders.
8.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
8.2.1 any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
8.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or any Specification; or
8.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.3 The price of the Goods:
8.3.1 excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
8.3.2 excludes the costs and charges of transport and insurance (if applicable) of the Goods, which shall be invoiced to the Customer.
8.4 Payment for the Goods must be made in advance of delivery to the bank account nominated in writing by the Supplier.
8.5 Alternatively, if agreed in writing between the parties and at the Supplier’s discretion, the Customer may pay the invoice issued by the Supplier in full and in cleared funds within 30 days of the end of month in which the invoice is issued. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
8.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
9. TERMINATION
9.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
9.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
9.1.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.4 the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.1.1 to clause 9.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
9.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
10. LIMITATIONS OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
10.1.2 fraud or fraudulent misrepresentation;
10.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
10.1.4 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
10.2 Subject to clause 10.1:
10.2.1 the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
10.2.2 the Supplier's total liability to the Customer in respect of all other 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 paid for the Goods.
11. FORCE MAJEURE
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure results from an event, circumstance or cause beyond its reasonable control. If the period of delay or non-performance continues for 3 months the party not affected may terminate the Contract by giving 3 days written notice to the affected party.
12. PRIVACY
12.1 Any personal information that the Customer provides to the Supplier under the Contract or in connection with it will be handled in accordance with the Supplier’s Privacy Policy (http://www.spotnails.co.uk/privacy-policy).
13. GENERAL
13.1 Assignment and other dealings.
13.2.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
13.2.2 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
13.2 Entire agreement.
13.2.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.2.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
13.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.4 Waiver. No failure or delay by a party 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 right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
13.6 Notices.
13.6.1Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address specified in the purchase order form or, in the absence of a purchase order form, the respective addresses in the latest email correspondence between the Customer and the Supplier regarding the Goods.
13.6.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (c), business hours means 9.00am to 5.00pm on a Business Day.
13.6.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13.7 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
13.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall
be governed by and construed in accordance with the law of England and Wales.
13.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
1320512982v2
