1.1 In these Conditions:
`BUYER' means the person who accepts a quotation of the Seller for the sale of the goods or whose order for the goods is accepted by the Seller
`GOODS' means the goods (including any instalment of the goods or any parts for them), which the Seller is to supply in accordance with these Conditions
`SELLER' means Ballyclare Limited (registered in England under number 7463998)
‘CONSUMERS’ means any natural person who, in contracts to which these Terms & Conditions apply, is acting for purposes which are outside his/her business
2.1 Any contract of sale undertaken by Ballyclare Limited is deemed to incorporate these terms and conditions; no variation or modification of or substitution for these terms and conditions shall be binding on the Company unless specifically accepted by the Company in writing.
2.2 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations, which are not so confirmed.
2.3 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application, care instructions or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
3.1 The price to be paid for the goods or the services will be the Sellers price at the date of receipt of order.
The price of the goods includes the cost of the Sellers standard packaging and delivery within the U.K. for all orders above £250, by the Sellers normal transportation; the price does not include VAT.
The cost of any before 10:00am or overnight deliveries requested by the customer, where delivery is within quoted lead-times, will be passed on to the customer. Any overseas deliveries may also bear an additional cost, which will be communicated on a case-by-case basis.
4.1 Payment for the goods or services must be made by month end following month of invoice. Invoices will be dated with the date on which the goods are despatched.
4.2 The Seller reserves the right to charge interest on overdue sums at the rate of 4% per annum above the Base Rate of Royal Bank of Scotland PLC calculated on a daily basis from the due date of payment in clause 3.1 until the date upon which payment is made.
4.3 If the Buyer fails to make payment by the due date or when required, the Seller may cancel this contract and/or any other contract between the Buyer and the Seller and/or suspend delivery under this contract until payment is made.
5.1 Delivery dates are approximate only and the Seller shall not be responsible for any loss or damage arising from any delay in delivering all or part of any goods ordered or delays in the provision of any services.
5.2 Where the Seller is unable to perform due to any circumstances beyond their control they may suspend performance while those circumstances subsist and any agreed date or period for delivery shall be regarded as extended accordingly. If any period of suspension of deliveries lasts for more than three months, either party may cancel the contract by written notice without penalty.
5.3 Claims for short delivery or damaged goods must be made in writing within 7 days of delivery. All parcels dispatched are accurately weighed to allow us to check short delivery by remaking the parcel. Claims for non-delivery should be made within 21 days of Tax Invoice date.
5.4 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
5.5 If the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
The lead times for any Delivery shall commence upon the final approval by the Buyer of all component parts and specifications of the order.
6. Retention of Title
No title in the goods shall pass from the Sellers to the Buyer unless and until the Seller has received payment in full for the goods and for any other amounts owing by the Buyer to the Seller on any other account whatsoever.
6.2 Storage of the Goods
Until payment for the goods has been made in full, including payment of any interest due, the Buyer shall store the goods in such a way as to enable them to be identified as the property of the Seller and shall hold them as bailee for the Seller. The Buyer shall not dispose of or part with possession of the goods until title passed, save that the Buyer may sell the goods in the normal course of business.
The risk in the goods shall pass to the Buyer when they are despatched from the Seller’s premises either for delivery to the Buyer or as a result of collection by the Buyer. The Buyer shall keep the goods fully insured until title has passed.
6.4 Recovery of the Goods
The Seller reserves the right to repossess and uplift the goods and thereafter to resell the same and for this purpose the Buyer hereby grants an irrevocable right and licence to the Seller’s employees and agents to enter upon all or any other its vehicles or premises in which the goods are stored with or without vehicles during normal business hours. This right shall continue to sub sit notwithstanding the termination of the Contract for any reason and is without prejudice to any accrued rights of the Seller thereunder or otherwise.
6.5 Recover of Proceeds of Sale of Goods in the Event of Non-Payment
If the Buyer re-sells any goods supplied by the Seller, the proceeds of any such re-sale equivalent to all sums owing (“the Proceeds”) shall belong to the Seller until payment has been received in full. The Buyer will hold the Proceeds in a fiduciary capacity and keep them in a separate account, to be remitted forthwith to the Seller.
6.6 Termination of Buyer’s Rights
The Buyer’s right to possession shall cease forthwith in the following events:
(i) the Buyer has not paid all amounts due to the Seller on any account whatsoever
(ii) the Buyer is declared bankrupt or makes or attempts to make any proposal to his creditors for composition or other voluntary arrangement with its creditors or does or fails to do anything which would entitle a petition for winding up or a bankruptcy order to be presented
(iii) the Buyer does or fails to do anything which would entitle any person to appoint a receiver to the whole or part of the Buyer’s assets or would entitle any person to present a petition for the administration of the Buyer or a resolution is passed for the winding up of the Buyer
(iv) a judgement against the Buyer remains unsatisfied
(v) the Buyer is unable to pay a debt to a third party as it falls due and / or is deemed to be insolvent
(vi) any distress or execution is levied against any of the Buyer’s assets
All mitigation / recovery activities by the Seller under the contract between the parties are agreed to be entirely without prejudice to any additional claims it may have against the Buyer for any failure by the Buyer to complete its obligations under the contract between the parties.
6.8 Deduction, Set-Off or Counterclaim
In the event of any of the occurrences referred to in sub-clause 6.6 above arising, all sums due from the Buyer to the Seller shall become immediately due and payable without deduction, set-off or counterclaim.
7. Orders and Specifications
7.1 Alterations to, and cancellations of, orders accepted by the Seller cannot be made without the consent of the Seller in writing and we reserve the right to charge for any additional costs resulting from such alterations and for any expense incurred before cancellation in specially adapting goods to customers requirements.
7.2 If cancellation of an order has been accepted, but the order has already been despatched, the Buyer will be liable for all carriage charges incurred.
7.3 Any illustration and / or description of goods appearing in any literature shall be deemed to be for general guidance and information only and shall not constitute a specification of the goods, nor shall it be deemed to be a term of the contract that the goods shall comply with such illustration or description.
7.4 Orders must originate from an authorised official of the Buyer, and may be communicated by any of the following methods; an official order form, EDI, fax, email, letterheads, post, purchase and credit card or cheque payment.
7.5 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification.
7.6 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.
7.7 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
8. Warranties and Liability
8.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from delivery.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
8.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller's approval;
8.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.6 Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.
9. Insolvency of Buyer
9.1 This clause applies if:
9.1.1 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
9.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
9.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
9.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10. Returns - If you are a Business Customer
10.1 Goods are not sold on a sale or return basis under any circumstances. Goods cannot be returned for credit unless received faulty, damaged or have been incorrectly sent and are returned within 21 Days of receipt. If, due to exceptional circumstances, management agrees to the return of certain goods a 25% surcharge will be levied.
10.2 The following Goods will not be accepted for return by the Seller unless received faulty, damaged or have been incorrectly sent:
10.2.1 any Goods made specifically to the Buyer's order;
10.2.2 Goods, which have been used or soiled in any way;
10.2.3 Goods, which are not returned in their original packaging
10.2.4 any other non-standard or Goods which cannot be reused.
11. Returns – If you are a consumer
11.1 Right to cancel
You have the right to cancel this contract within 14 days without giving any reason. The cancellation period will expire after 14 days from the day of the conclusion of the contract.
To exercise the right to cancel, you must inform us, of your decision to cancel this contract by a clear statement (e.g. a letter sent by post, fax or e-mail). Written cancellations can be sent to Ballyclare Limited, The Forum, Hercules Business Park, Bird Hall Lane, Stockport SK3 9DA. Faxed to 0161 412 0001 or emailed to firstname.lastname@example.org.
You may use the model cancellation form below, but it is not obligatory.
You do not have the right to cancel goods that have been specifically made to your order, including but not limited to special measure items and personalised items.
To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired.
You must arrange for the return of all items at your own cost.
11.2 Effects of cancellation
If you cancel this contract, we will reimburse to you all payments received from you, including the costs of delivery (except for the supplementary costs arising if you chose a type of delivery other than the least expensive type of standard delivery offered by us).
We may make a deduction from the reimbursement for loss in value of any goods supplied, if the loss is the result of unnecessary handling by you.
We will make the reimbursement without undue delay, and not later than:
(a) 14 days after the day we receive back from you any goods supplied, or
(b) (if earlier) 14 days after the day you provide evidence that you have returned the goods, or
(c) if there were no goods supplied, 14 days after the day on which we are informed about your decision to cancel this contract.
We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement.
We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest.