Terms & Conditions
1. Interpretation
1.1
Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document.
Contract: the contract between WBH and the Customer for the sale and purchase of the Goods in accordance with these Conditions. Customer: the person, body corporate or unincorporated body who purchases the Goods from WBH.
Delivery Location: the location where the Goods are collected or destroyed in accordance with the provisions of clause 4.2.
Force Majeure Event: has the meaning given in clause 13.
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
ISIR: initial sample inspection report prepared by WBH.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form.
Specification: any specification for the Goods, including any related plans and drawings, produced by the Customer.
WBH: Weston Body Hardware Limited (registered in England and Wales with company number 8453799).
1.2
Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) 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.
(e) A reference to writing or written includes faxes.
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 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 submitted by the Customer are complete and accurate.
2.3
The Order shall only be deemed to be accepted when WBH issues a written acceptance of the Order (Order Acknowledgement), at which point the Contract shall come into existence.
2.4
The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of WBH which is not set out in the Contract.
2.5
Any samples, drawings, descriptive matter, or advertising produced by WBH and any descriptions or illustrations contained in WBH’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6
A quotation for the Goods given by WBH shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3. Goods
3.1
Subject to clause 2.5 the Goods are described in WBH’s catalogue or the Specification.
3.2
To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify WBH and hold WBH harmless at all times against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by WBH in connection with any claim made against WBH for actual or alleged infringement of a third party’s intellectual property rights arising out of or otherwise in connection with WBH’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3
Following the manufacture of any Goods by sample in accordance with a Specification WBH will test the Goods and prepare an ISIR. Acceptance by the Customer of the ISIR shall:
(a) Entitle WBH to proceed on the basis that the Goods are of satisfactory quality and suitable for the Customer’s purpose; and
(b) Produce the rest of the Order in accordance with the Contract.
3.4
WBH reserves the right to amend the specification of the Goods or Specification if required by any applicable statutory or regulatory requirements.
3.5
In the event that any amendment is required:
(a) Pursuant to clause 3.4; or
(b) At the request of the Customer; or
(c) At the suggestion of WBH but with the Customer’s agreement;
(Collectively “Specification Changes”)
The cost of any Specification Changes shall be borne in full by the Customer.
4.0 Intellectual Property Rights
4.1
All Intellectual Property Rights in the Goods and/or any tooling manufactured in order to produce the Goods will remain at all times vested in WBH unless otherwise expressly agreed by the parties in writing.
5.0 Delivery
5.1
WBH shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and WBH reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if WBH requires the Customer to return any packaging materials to WBH, that fact will be clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as WBH shall reasonably request. Returns of packaging materials shall be at WBH’s expense.
5.2
Subject to agreement between the parties, WBH shall:
(a) Deliver the Goods to the location set out in the Order or such other location as the parties may agree at any time after WBH notifies the Customer that the Goods are ready; or
(b) The Customer shall collect the Goods from WBH’s premises within 3 Business Days of WBH notifying the Customer that the Goods are ready.
5.3
Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location or on the completion of loading of the Goods at the Delivery Location.
5.4
Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. WBH 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 WBH with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.5
Subject to clause 12, if WBH fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality, less the price of the Goods. WBH shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide WBH with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.6
If the Customer fails to take or accept delivery of the Goods (as the case may be) within three Business Days of WBH notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or WBH’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which WBH notified the Customer that the Goods were ready; and
(b) WBH shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.7
If ten Business Days after the day on which WBH notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, WBH may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.8
WBH may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.0 Customer’s Obligations
6.1
The Customer shall:
(a) Co-operate with WBH at all times in all matters relating to the Contract or the provision of the Goods;
(b) Obtain and maintain all necessary licences and consents and comply with all relevant legislation relating to or in connection with the Goods.
7.0 Quality
7.1
WBH warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
(a) conform in all material respects with their description and any applicable Specification;
(b) be free from material defects in design, material and workmanship.
7.2
Subject to clause 7.3, if:
(a) the Customer gives notice in writing to WBH during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 7.1;
(b) WBH is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by WBH) returns such Goods to WBH’s place of business at the Customer’s cost, WBH shall, at its option, repair or replace the defective Goods.
7.3
WBH shall not be liable for Goods’ failure to comply with the warranty set out in clause 7.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 7.2;
(b) the defect arises because the Customer failed to follow WBH’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of WBH following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of WBH;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) 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.
7.4
Except as provided in this clause 7 and subject always to the provisions of clause 12, WBH shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 7.1.
7.5
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.
7.6
These Conditions shall apply to any repaired or replacement Goods supplied by WBH.
8.0 Insurance
8.1
WBH shall at all times effect and maintain liability insurance, a summary of which is available on request.
8.2
The Customer will be covered under WBH’s marine/goods in transit insurance in accordance with the terms of such insurance where the Customer pays an additional sum for shipping in accordance with the provisions of clause 10.4 of these Conditions.
Where applicable, a summary of WBH’s marine and goods in transit insurance can be provided upon request.
9.0 Title and Risk
9.1
The risk in the Goods shall pass to the Customer on completion of delivery or collection as the case may be.
9.2
Title to the Goods shall not pass to the Customer until WBH receives payment in full (in cash or cleared funds) for the Goods and any other Goods that WBH has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such outstanding sums.
9.3
Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as WBH’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify WBH immediately if it becomes subject to any of the events listed in clause 11.2; and
(e) give WBH such information relating to the Goods as WBH may require from time to time.
9.4
Subject to clause 9.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before WBH receives payment for the Goods. However, if the Customer resells the Goods before that time it does so as principal and not as WBH’s agent.
9.5
If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 11.2, then, without limiting any other right or remedy WBH may have:
(a) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) WBH may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) 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.
10. Price, Payment and Creditworthiness
10.1
WBH reserves the right to:
(a) Conduct such credit checks as it sees fit from time to time in order to assess the creditworthiness of the Customer;
(b) Require the Customer to pay in advance for the Goods (Pro Forma) before the Goods are shipped or delivered;
(c) Require the Customer to pay all other amounts due and payable (if any) to WBH before the Goods are shipped or delivered.
10.2
The price of the Goods shall be the price set out in the Order Acknowledgement, or, if no price is quoted, the price set out in WBH’s published price list in force as at the date of delivery or collection as the case may be.
10.3
WBH may, by giving notice to the Customer at any time up to 3 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond WBH’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), Delivery Location, quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give WBH adequate or accurate information or instructions.
10.4
The price of the Goods is exclusive of the costs and charges of packaging, taxes, other costs and expenses, insurance and transport of the Goods, which shall be invoiced to the Customer.
10.5
The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from WBH, pay to WBH such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
10.6
Subject to clause 10.1 WBH may invoice the Customer for the Goods on or at any time after the completion of delivery.
10.7
Subject to clause 10.1 the Customer shall pay the invoice in full and in cleared funds within 30 days from the date of invoice. Unless other contractual arrangements have been confirmed by WBH in advance of the receipt of the order. Payment shall be made to the bank account nominated in writing by WBH. Timely payment is of the essence.
10.8
If the Customer fails to make any payment due to WBH 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 Lloyds Bank’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.
10.9
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). WBH 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 WBH to the Customer.
11. Termination and Suspension
11.1
If the Customer becomes subject to any of the events listed in clause 11.2, WBH may terminate the Contract with immediate effect by giving written notice to the Customer.
11.2
For the purposes of clause 11.1, the relevant events are:
(a) the Customer is in material breach of some or all of its obligations under the Contract;
(b) the customer fails to pay some or all of the amounts outstanding to WBH;
(c) the Customer 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;
(d) the Customer 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;
(e) (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 Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(f) (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 Customer;
(g) (being a company) the holder of a qualifying floating charge over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
(i) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(j) a creditor or encumbrancer of the Customer 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 14 days;
(k) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.2(c) to clause 11.2(h) (inclusive);
(l) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(m) the Customer’s financial position deteriorates to such an extent that in WBH’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(n) (being an individual) the Customer 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.
11.3
Without limiting its other rights or remedies, WBH may suspend provision of the Goods under the Contract or any other contract between the Customer and WBH if the Customer becomes subject to any of the events listed in clause 11.2(c) to clause 11.2(n), or WBH 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.
11.4
On termination of the Contract for any reason the Customer shall immediately pay to WBH all of WBH’s outstanding unpaid invoices and interest.
11.5
Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
11.6
Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
12. Limitation of Liability
12.1
Nothing in these Conditions shall limit or exclude WBH’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for WBH to exclude or restrict liability.
12.2
Subject to clause 12.1:
(a) WBH shall under no circumstances whatever 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
(b) WBH’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 of the Goods stipulated in the Contract.
13. Force Majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
14. General
14.1
Assignment and other dealings
(a) WBH 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.
(b) 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 WBH.
14.2
Notices
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.2(a); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14.3
Severance
(a) 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.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.4
Waiver
A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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.
14.5
Third party rights
A person who is not a party to the Contract shall not have any rights to enforce its terms.
14.6
Variation
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by WBH.
14.7
Governing law
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
14.8
Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
Terms & Conditions updated 1st June 2022
