Terms of Supply:
In these terms and conditions ‘the Company’ means Earlsmann Limited and Earlsmann Lighting Limited. ‘the Buyer’ means the party with whom the Company is contracting and ‘goods’, where the context so permits and requires, means the goods and / or services which the Company contracts to supply and / or to provide and ‘Conditions’ means the following conditions of sale.
All orders are accepted by the Company subject to and in accordance with these Conditions. These Conditions override and exclude any terms or conditions in or referred to in any negotiations or course of dealing between the Company and the customer or set out in the Customer’s standard terms and conditions. If there is any conflict between the other provisions and these Conditions; or the provisions of the order and these conditions these conditions will prevail unless the Company agrees otherwise in writing. These Conditions constitute the entire agreement between the Company and the Customer in relation to the Supplies ordered. No variation to these Conditions is permitted unless expressly authorised in writing by a director of the Company.
Prices for supplies are in £ sterling, exclusive of VAT, which will be added at the time of despatch. The Company reserves the right, by giving notice to the Buyer, at any time before delivery, to increase the price of any goods to reflect any increase in cost to the Company. Exercise by the Company shall not entitle the Buyer to cancel the contract. Where any additional or changed information is submitted to the Company by the Buyer after the date of the Contract the Company reserves the right tin increase prices to cover any additional costs (including additional overheads) incurred by the Company as a result of such alteration and / or to extend the delivery period. The Company shall be entitled to charge at such rate as shall be fair and reasonable for all preliminary or development work which the Company carries out at the request of the Buyer.
Payment is usually due not later than the end of the month following the month of despatch, without any deductions, withholding or set off. The Company reserves the right to request payment in advance in relation to any order. For customers outside the UK please contact our sales department for further information.
Time for payment is of the essence. If the Customer fails to make payment by the due date then, without prejudice to any other right or remedy, the Company shall be entitled to: i) cancel the order or suspend any further deliveries or performance; ii) charge interest (both before and after) any judgement) on the amount unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 until payment is made in full.
If legal action is taken to recover monies due to the Company then the Company reserves the right to charge the Customer statutory compensation in accordance with the Late Payment of Commercial Debts Regulations 2002. The statutory compensation shall become payable immediately when legal action is commenced, whether demanded or not, and may be claimed within the legal action.
4 New Accounts:
A customer wishing to open a credit account must furnish such information as may be requested by the Company and the Company may make a search with a credit reference agency. The Company reserves the right in its absolute discretion to grant, refuse or discontinue any credit facilities or reduce or suspend any credit limit at any time.
The Company reserves the right to decline to trade with any company or person or to impose reasonable conditions prior to accepting any order (such as, by way of example, the provision of a valid landline phone number or the prior receipt of cleared funds by the Company) where the Company considers it reasonably necessary for security or fraud prevention purposes.
Once accepted, no order may be cancelled without the prior written agreement of a director of the Company.
The Buyer shall at all times be liable to pay to the Company all costs and losses incurred by the Company in respect of goods in an Order including (but without limitation) those in respect of finished goods, work in progress, materials acquired by the Company for the purpose of fulfilling the Order and manufacturing goods.
The Company may use any method of delivery available to it. The Company will use reasonable endeavours to meet delivery, except as set out below, in no circumstances shall it be liable to compensate the Customer for non-delivery, non-performance or late delivery or performance. Time for delivery and / or performance will not be of the essence. The Company reserves the right to delay despatch for a number of reasons including to perform any necessary credit or anti-fraud checks or procedures or to ensure that payment has been received in cleared funds in full. Where despatch is delayed for such reasons the Company will use reasonable endeavours to inform the Customer.
7 Inspection, defects and non-delivery:
The Customer must inspect the Supplies as soon as is reasonably practicable after delivery except as set out below the Company shall not be liable for any defect in the Supplies unless written notice is given to the Company within 10 days of such date.
The quantity of any consignment of Goods, as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery, unless the Customer can provide conclusive evidence to the contrary. The Company will not be liable for any non-delivery of Goods unless written notice is given to the Company within 5 days of the date when Goods should have been delivered in the ordinary course of events. Subject to (xx) below, any liability of the Company for non-delivery or non-performance or for Goods notified as defective on delivery in accordance with this Condition (6) will be limited to replacing the goods or refunding the price then paid in respect of such supplies.
For customers in the UK, except as detailed in Condition 8 below, no order can be cancelled or accepted for credit without the prior written agreement of the Company. If cancellation / credit is accepted by the Company. Goods must be returned at the Customer’s risk and expense, for receipt by the Company within 7 days of notice. Goods must be undamaged, in re-saleable condition and in original packaging. The customer is responsible for returning the Goods to the Company and for providing proof of delivery of such return. Goods returned after 7 days as ‘unwanted’ or ‘incorrectly ordered’ may be accepted at the discretion of the Company but will be subject to a re-stocking fee of 30% of the invoice value of the Goods. Customers outside the UK should contact the sales office for further information.
9 Consumer Contracts Regulations:
If the Customer is buying as a ‘consumer’ (as defined in The Consumer Contracts Information, Cancelation and Additional Charges) Regulations 2013, the Customer may, within 14 days after the day of delivery of the Goods, cancel its contract for the Goods by notifying the Company in writing. Providing the Customer has cancelled its contract in accordance with this Condition 8 the customer may return the Goods and be repaid the price paid by the Customer in respect of the Goods I (less any deduction required in the event that there is a loss in value of the Goods if the loss is the result of unnecessary handling by the Customer.) The Customer is to be responsible for the payment of all costs of returning the Goods. In respect of certain goods the Company may prefer to arrange collection itself in which case the Customer will (i) allow the Company to collect the Goods (ii) assist in the arrangements for the Goods’ collection and (iii) bear all reasonable costs of collection of the Goods. The Customer is responsible for the care and custody of the Goods pending return or collection. The Company will refund to the Customer the price paid in respect of the Goods (less any deduction for loss in value of the Goods as described in this Condition 8 no later than 14 days after receipt of Goods in accordance with this Condition 8 or receipt of evidence that the Customer has sent back the Goods (whichever is the earliest).
All specifications, drawings, illustrations, descriptions and particulars of weights, dimensions, capacity or other details, including any statements as to compliance with legislation or regulation (together, ‘Descriptions’) wherever they appear (including on despatch notes, invoices or packaging) are intended to give a general idea of the Supplies, but will not form part of the Contract. If the Descriptions of any Goods differ from the manufacturer’s description, the latter shall be deemed to be correct. The Company shall take all reasonable steps to ensure the accuracy of descriptions but relies on such information, if any, as may have been provided to it by its suppliers and accepts no liability in contract or tort or under statute or otherwise for any error or omission in such detail whether caused by the Company’s negligence or otherwise. The Company may make changes to the Supplies as part of a continuous programme of improvement or to comply with legislation.
11 Risk and ownership:
The risk of damage to or loss of Goods will pass to the Customer when the Goods are unloaded from the Company’s carriers at the Customer’s premises. Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due from the Customer to the Company on any account whatsoever. Until ownership passes to the Customer the Customer must hold the goods on a fiduciary basis as the Company’s bailee. If payment is not received in full by the due date, or the Customer passes a resolution for winding up or a court shall make an order to that effect, or a Receiver is appointed over any assets or the undertaking of the Customer or an execution or distress is levied against the Customer, the Company shall be entitled, without previous notice, to retake possession of the Goods and for that purpose to enter upon any premises occupied or owned by the Customer.
12 Quality assurance:
All Goods have been processed in strict accordance with standard quality procedures approved to BS EN ISO9001 unless indicated otherwise on the despatch documentations.
Further details may be obtained from our sales office at the time of ordering.
13 Performance and fitness for purpose:
Unless any performance figures, tolerances or characteristics have been specifically and expressly warranted by a Director of the Company in writing, the Company accepts no liability for any failure of the Supplies to comply with such criteria, whether attributable to the Company’s negligence or otherwise. The responsibility for ensuring that Supplies are sufficient and suitable for a particular purpose is the Customer’s unless specifically stated in writing by a Director of the Company. Any advice or recommendation given by an employee of the Company which is not confirmed in writing by a Director of the Company is acted on entirely at the Customer’s risk and the Company shall not be liable for any such advice or recommendation which is not so confirmed. Except as set out in Condition 14 the liability of the Company to the Customer should any warranty, statement, advice or recommendation confirmed in accordance with this Condition 12 prove to be incorrect, inaccurate or misleading, will be limited to the refund of the price paid for the Supplies or, at the Company’s option the supply of replacement Supplies which are sufficient and suitable.
The Company will endeavour to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer of Goods. Not all Goods are supplied with a manufacturer’s or Company guarantee and guarantees, which may be provided by manufacturers will vary in duration. It is the Customer’s responsibility to check at the time of the purchase as to the applicability of the Company’s guarantee and / or the terms of any manufacturer’s guarantee. Where the Company’s guarantee is provided, the Company will, free of charge, repair or, at the Company’s option, replace Goods. If the Goods are found by the Company not to be damaged or defective then the Company will be entitled to return the Goods to the Customer at the Customer’s sole expense. The obligation will not apply;
If the defect arises because the Customer has altered or repaired such Goods without the written consent of the Company;
Because the Customer did not follow the manufacturers’ instructions for storage, usage, installation, use or maintenance of the Goods;
If the Customer has failed to notify the Company of any defect in accordance with Condition 6 where the defect should have been reasonably apparent on reasonable inspection; or
If the Customer has failed to notify the Company of the defect with 12 months (or such other period as the Company shall specify at the time of acceptance of the order for the Supplies) of the date of despatch of the Goods or performance of the Services. Any replacement Supplies made or Goods repaired under this Condition 13 will be guaranteed on these terms for any unexpired portion of the period of guarantee given on the original Supplies. Any Goods which have been replaced will belong to the Company. The Customer grants to the Company and its employees, agents and representatives a right to enter onto its premises to effect any repair or replacement under this Condition 13. The Customer shall ensure that the Company’s employees, agents and representatives are provided with a safe and secure working environment while at its premises.
Except as set out in 14 (1) below and 6 above, this Condition is the Company’s sole obligation and the Customer’s sole remedy for defective Supplies and is accepted by the Customer in substitution for all express or implied representations, conditions or warranties, statutory or otherwise, as to the satisfactory quality, fitness for purpose or performance of the Goods (or any materials used in connection therewith).
The Company does not exclude its liability to the Customer;
For breach of the Company’s obligations under section 12 Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982.
For personal injury or death arising as a result of the Company’s negligence;
Under section 2(3) Consumer Protection Act 1987;
For breach of the statutory implied conditions in sections 13, 14 and 15 of the Sale of Goods Act 1979 where the Customer deals as a ‘consumer’ as defined in the Unfair Contract Terms Act 1997;
For any mater which it would be illegal for the Company to exclude or to attempt to exclude its liability; or
For fraud including fraudulent misrepresentation
And nothing in these Conditions shall affect the statutory rights of a Customer who deals as a consumer as defined in the Unfair Contracts Terms Act 1997 (iii) Except as provided in Conditions 6 (inspection, defects on delivery and non-delivery), 12 (performance and fitness for purpose), 13 (Warranty and guarantee) and this condition 14 above, the Company will be under no liability to the Customer whatsoever (whether in contract, tort, (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct or indirect or consequential loss (all of which terms include without limitation, pure economic loss, loss of profits, loss of business, loss of use, loss of data, computer down time, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, loss of contracts and like loss) howsoever caused or arising out of on in connection with
Any of the supplies or the manufacture, sale, performance or supply or failure or delay in performance or supply of the Supplies by the Company or on part of the Company’s employees, agents or sub-contractors; Any breach by the Company of any of the express or implied terms of the Contract;
Any use made or resale or on-supply of any of the Supplies or any product incorporating any of the Goods or developed using the Supplies;
Any acts or omissions of the Company at the Customer’s premises;
Any statement made or not made or advice given or not given by or on behalf of the Company or;
Otherwise under the Contract
And the Company hereby excludes to the full extent permissible at law all conditions, warranties and stipulations, express (other than those set out in these Conditions or given in accordance with Conditions 12) or implied, statutory, customary or otherwise which but for such exclusion, would or might subsist in favour of the Customer.
Save as set out in condition 14 (ii) the Company’s total liability in contract, tort, (including negligence), breach of statutory duty, misrepresentation or otherwise shall be limited to repairing or replacing Goods. Each of the Company’s employees, agents and subcontractors rely on and enforce the exclusions and restrictions of liability in Conditions 6, 9, 12, 13 and 14 in that person’s own name and for that person’s own benefit.
16 Intellectual property rights;
The Supply of goods may be subject to the intellectual and industrial property rights including patents, knowhow, trademarks, copyright, design rights, utility rights and or other rights of third parties. No right or licence is granted to the Customer, except the right to use the Supplies or re-sell the Goods in the Customer’s ordinary course of business. The Company shall have no liability whatsoever in the event of any claim of infringement of any such rights howsoever in the event of any claim of infringement of any such rights howsoever arising.
17 Use of personal data:
‘Personal Data’ means, in relation to any Customer, or any representative of a Customer who is (in either case) a living individual, any data from which (whether alone or in combination with other information held by the Company) the Company can identify that Customer or that representative, regardless of how and when that data is provided. The Company may process Personal Data for all purposes contemplated in these Conditions or arising in the context of the relationship between the Company and the Customer including:
Deciding whether to enter into any contract or arrangement with that Customer. This may include conducting credit reference searches, against a Customer or its representatives and the disclosure of information to the relevant agency as to how that Customer conducts its account and other anti-fraud or identity checks; the relationship between the Company and the Customer.
18 Force majeure:
The Company shall not be liable to the Customer in any manner or be deemed to be in breach of these Conditions because of any delay in performing or any failure to perform any of the Company’s obligations under this Contract if the delay or failure was due to any cause beyond the Company’s reasonable control (which shall include, but not be limited to Government actions, war, fire, explosion, flood, import or export regulations or embargoes, labour disputes or liability to obtain or a delay in obtaining supplies of Goods or labour). The Company may, in its opinion, delay the performance of or cancel the whole or any part of a Contract.
19 Legal construction:
All Contracts shall be governed by and interpreted in accordance with English law and the Customer submits to the jurisdiction of the English Courts, but the Company may enforce such Contract in any court of competent jurisdiction.
Any provision of these Conditions of Supply which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the other provisions of these Conditions of Supply and the remainder of such provision shall not be affected. Failure by the Company to enforce or partially enforce any provision of these Conditions of Supply will not be constrained as a waiver of any rights under these Conditions of Supply. The Company shall be entitled, without the consent of or notice to the Customer, to assign the benefit, subject to the burden of these Conditions and / or any Contract to any company it is group (as defined in section 53(1) of the Companies Act 1989) at any time. Except as set out in Condition 14, the parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
These Conditions supersede all previous issues.
21 Qualified Personnel:
The Company provides industrial goods that are intended for use or installation by qualified and certified personnel. Customer must not use or install such products unless he or she has the relevant qualifications. Any misuse or installation of the industrial goods that breaches the terms of this clause will be at the Customer’s own risk. The Customer will indemnify the Company and its suppliers against any and all liability and expense (including costs) resulting from any such installation or misuse.
Earlsmann Group of Companies, 7-9 Brooklands, Howden Road, Tiverton, Devon EX16 5HW