1. ‘Storwell’ referred to in the following conditions means Storwell Systems Limited (Company registration number 0617382);
2. ‘Purchaser’ means the person, firm or company contracting with Storwell;
3. ‘Goods’ means any plant, materials, equipment or any part of parts thereof supplied by Storwell;
4. ‘Services’ means all works or design, repair or supervisory services and work of erection on site and any other act to be performed by Storwell;
5. “Conditions” the standard terms and conditions of sale, as set out herein, together with any future amendments, modifications and revisions;
6. All quotations are made and all orders are accepted subject to the following conditions. All other conditions contained in any order or otherwise are excluded from the contract or any variation thereof unless expressly accepted by Storwell in writing;
7. No contract is deemed to come into existence unless and until the Purchaser’s order to carry out the services or supply the material specified in a quotation is accepted by Storwell in writing but without prejudice to Storwell’s right to claim that a contract has come into existence without such written acceptance at common law.
2. SITE SURVEYS
2.1 All quotations are subject to a site survey being made by Storwell’s technical representatives if Storwell in its discretion requires to verify the information given by the Purchaser.
2.2 Storwell reserves the right to amend the design subject to the site survey.
2.3 The Purchaser is responsible for ensuring that the Purchaser’s premises are adequate to withstand the loads imposed and the Purchaser is deemed to warrant that all floors, foundations, walls, roof, joists, beams and any other parts of the site and buildings are in such a strong and fit condition that the work can be carried out safely and are suitable for Storwell’s materials and Services and for carrying the loads distributed.
3. QUOTES AND ORDERS
3.1 All quotations are valid for a period of 30 days from the date therein unless expressly stated to be valid for a shorter or longer period.
3.2 The Purchaser shall be responsible to Storwell for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Purchaser, and for giving Storwell any necessary information relating to the Goods within a sufficient time to enable Storwell to perform the contract in accordance with its terms.
3.3 All orders placed are firm orders and shall be confirmed in writing and the Purchaser confirms that it is understood that Storwell does not operate a .sale or return . or .exchange and return. policy.
3.4 Each order placed constitutes a separate contract and any default by Storwell in relation to any order shall not entitle the Purchaser to terminate another order.
4. TERMS OF PAYMENT
4.1 In the absence of agreed trade account terms with the Purchaser, payment is required prior to delivery of the Goods save that for large orders payment is required prior to the Goods being manufactured. Payment terms will be set out in the quotation.
4.2 Terms of payment by the Purchaser shall be within 30 days from the date of invoice unless stated to the contrary in the quotation or confirmation of order, although in addition Storwell reserves the right where reasonable to demand immediate payment prior to supply of the Goods or Services or to call for payments by instalments comprising interim progress payments and a final payment.
4.3 When it is agreed that interim and final payments are to be conditional on the issue of an architect’s certificate payments shall be made within 21 days of the date of such certificate
4.4 The Purchaser shall be deemed to have taken over the goods on the date of practical completion and minor defects that do not affect their use for the purpose of which they were intended shall not delay the terms of payment.
4.5 Time for payment shall be of the essence and Storwell shall be entitled to charge at a rate equivalent of four per cent above the base rate of Storwell’s bankers on all overdue accounts and in addition may postpone the completion of any of its own outstanding obligations and suspend work until such overdue payment is made.
4.6 No dispute arising as to quality or performance of the Goods or Services or defects or omissions shall entitle the Purchaser to delay payment unless Storwell shall agree liability thereon in an agreed sum or shall have been found liable by a Court of competent jurisdiction.
5.1 All prices quoted are exclusive of Value Added Tax unless otherwise stated.
5.2 All prices quoted for Goods or Services are subject to fluctuation in the cost of labour, materials, transport, overheads, currency exchange rates, taxation, Government Orders and Regulations, whether new or existing, or other like factors outside Storwell’s reasonable control and any increase in such costs after the date of quotation and up to the date of delivery will be added to the contract price.
5.3 Storwell reserves the right to make an additional charge in respect of variations requested by the Purchaser to the terms and specifications of the Contract or for work to be carried out other than during normal working hours.
5.4 Online website store prices displayed include standard delivery to England, Wales and southern Scotland. However, for non-standard delivery arrangements and for deliveries elsewhere delivery charges shall be shown on the quotation.
6. RISK AND TITLE
6.1 Risk shall pass to the Purchaser when the Goods or a relevant part thereof leave the premises of the manufacturer or supplier for the delivery to the customer notwithstanding that Storwell may arrange for delivery so that the Purchaser is responsible for all subsequent loss, damage or deterioration.
6.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Purchaser until Storwell has received in cash or cleared funds payment in full of the price of the Goods and Services and all other goods and services agreed to be sold or provided by Storwell to the Purchaser for which payment is then due.
6.3.1 Until such time as the property in the Goods passes to the Purchaser, the Purchaser shall hold the Goods as Storwell.s fiduciary agent and bailee, and shall keep the Goods separate from those of the Purchaser and third parties and properly stored, protected and insured and identified as Storwell.s property, and the Purchaser shall not be entitled to resell or part with possession of the Goods;
6.3.2 Until such time as the property in the Goods passes to the Purchaser (and provided the Goods are still in existence and have not been resold), Storwell may at any time require the Purchaser to deliver up the Goods to Storwell and, if the Purchaser fails to do so forthwith, enter on any premises of the Purchaser or any third party where the Goods are stored and repossess the Goods including where required dismantling the same without liability for any damage caused thereby;
6.3.3 The Purchaser shall not be entitled to pledge, create a lien over or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Storwell, but if the Purchaser does so all moneys owing by the Purchaser to Storwell shall (without limiting any other right or remedy of Storwell) forthwith become due and payable and so much of the proceeds of sale or any insurance money received by the Purchaser will be held on trust for Storwell;
6.3.4 Any receivers, administrators, liquidators or insolvency agents appointed will not have any rights or authority to withhold from or prevent access by Storwell or its agents to repossess the Goods.
7. DELIVERY AND DELAY
7.1 Time for delivery and performance is given in good faith as accurately as possible but it is not to be of the essence of the contract. The Purchaser shall have no right to damages or to impose penalties or to cancel the order for delay from any cause unless agreed by Storwell in writing.
7.2 Without prejudice to Condition 7.1 hereof time for delivery and performance shall in every case be conditional upon receipt of final instructions being obtained from the Purchaser within seven days of the date of the Purchaser’s written order and all necessary approvals by the Purchaser being obtained forthwith upon request.
7.3 The Purchaser shall notify Storwell in writing of all necessary forwarding instructions within seven days of the placing of the order for the Goods. Storwell will endeavour to comply with reasonable requests by the Purchaser for postponement of delivery but shall be under no obligation to do so. Where delivery is postponed otherwise than due to default by Storwell the Purchaser shall pay all costs and expenses including a reasonable charge for storage and transportation occasioned thereby and Storwell shall be entitled to invoice the goods in accordance with these Conditions.
7.4 Dates quoted for delivery of orders not requiring installation by Storwell refer to dates upon which the Goods are ready for dispatch but dates quoted for delivery of orders requiring installation refer to dates on which the Goods will arrive on site.
7.5 Unless otherwise specified delivery shall be made of all Goods to the nearest convenient kerbside unloading point to the Purchaser’s works or appropriate site and the Purchaser shall be responsible to notify Storwell of any restriction of access such as weight, width, height or loading hours for unloading vehicles or containers and transportation to the site of erection. Storwell shall have the sole right to determine the relevant unloading point. 7.5 The Purchaser is responsible for the handling of Goods from the delivery vehicle unless Storwell have specifically quoted for and accepted the order to include offloading and installation of the Goods and in the event of the Goods not being offloaded and subsequent delivery will be charged to the Purchaser.
7.6 If deliveries are required over a period extending over 14 days each consignment shall be considered as a separate transaction and invoiced separately.
8. DAMAGE IN TRANSIT, NON-RECEIPT, RETURNED GOODS
8.1.1 Since Goods supplied by Storwell are generally manufactured by the supplier to order Storwell cannot accept returned Goods or cancelled orders.
8.1.2 Storwell may in its absolute discretion agree to the return of Goods and where Goods have been accepted back with the express permission of Storwell, the Goods must be returned in their original packaging and credit shall not be given for goods received back damaged. The Purchaser shall unless otherwise stated be responsible for the cost of the return carriage of all Goods returned which shall be at the risk of the Purchaser until actual receipt of the Goods to the premises of the supplier. Proof of return delivery will remain with the Purchaser. All items returned by pre-arrangement and found to contain no fault will be subject to a 25% administration charge.
8.2 All Goods and materials shall be examined by the Purchaser on delivery. If for any reason the Purchaser is unable to inspect the Goods on delivery, the delivery documents must be noted as .Goods accepted without inspection. and signed by the delivery driver and the Purchaser or its duly authorised representative. Storwell shall not be liable for claims in respect of shortage or damage in transit unless the carrier and Storwell is notified in writing within three days of delivery or in the case of non-delivery notice in writing is given in respect thereof within fourteen days of the date of notice of dispatch of the Goods from the premises of Storwell or its suppliers. In the absence of such written notice or where the delivery documents have been signed for on delivery without the above note the Goods will be deemed to have been received in the correct quantity and free of any defects which would have been apparent on inspection.
8.3 Credit for shortage or damage will only be allowed when Storwell’s Conditions in the preceding sub-clauses are met.
Where Storwell agrees to cancellation of an order, cancellation will only be accepted by Storwell on condition that the costs and expenses and the loss of profits and other loss or damage sustained by Storwell (as to which in the absence of agreement between the parties the certificate of the auditor of Storwell shall be conclusive) will be reimbursed by the Purchaser to Storwell forthwith.
10.1 When work on the site is undertaken the Purchaser shall provide:
10.1.1 a clear and level site with sufficient space adjacent for the placing of material and shall supply the necessary foundations and temporary cover over the site to protect the Goods and construction work effectively from the elements;
10.1.2 water, light, compressed air, power, lifting tackle and fork lift truck with driver necessary in connection with the erection and shall undertake all filling in or making good of floors, roofs, provision of cover plates over inspection pits and any other civil engineering work, including removal of rubbish;
10.1.3 a satisfactory and continuous means of access to the site free from all obstructions together with off loading facilities and parking facilities for vehicles of Storwell, its employees and agents; and
10.1.4 health and welfare facilities which may be required by law under regulations current from time to time for employees of Storwell while they are engaged at the Purchaser’s premises in the performance of the contract.
10.2 All service connections, permanent and temporary for fuel, electricity, air, water and drains, both to main plant and auxiliary equipment shall be the responsibility of the Purchaser.
10.3 The Purchaser shall indemnify Storwell in respect of all claims made or proceedings taken against Storwell by any third party including, but not limited to employees of Storwell, the Purchaser’s employees or the employees of any contractor employed by the Purchaser or the personal representatives or dependants of any such employees or any other third parties in respect of personal injury or damage to property (including damage as a result of fire or explosion) caused by or arising out of the Goods and Services in any manner whatsoever, except where it is proved that Storwell or its employees have been negligent.
10.4 All persons provided by the Purchaser to assist Storwell shall in all respects remain employees of the Purchaser.
10.5 The Purchaser shall ensure that Storwell is able to carry out its work with continuity and without hindrance and any expense incurred by Storwell as a result of the Purchaser’s failure to so ensure will be charged extra.
10.6 Storwell shall be entitled to appoint one or more sub-contractors to carry out all or any of its obligations.
10.7 Where contractors other than those employed by Storwell are involved their programmes will be arranged by the Purchaser to permit Storwell’s work to be carried out with continuity and with one visit to the site. Should Storwell be subject to delays or require to make a return visit or return visits to the site additional cost will be chargeable to the Purchaser.
10.8 On completion of the contract all surplus material by Storwell shall, unless otherwise agreed, remain the property of and be removed from the site by Storwell. Until such material is removed the Purchaser shall take reasonable precautions for the sole custody of such surplus materials.
11. WARRANTIES AND LIABILITY
11.1 Subject to the following provisions Storwell 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 the date of their initial use or 12 months from delivery, whichever is the first to expire. The above warranty is given by Storwell subject to the following conditions: Storwell shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Purchaser; Storwell 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 Storwell.s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without Storwell.s approval; Storwell 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; the above warranty does not extend to parts, materials or equipment not manufactured by Storwell, in respect of which the Purchaser shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Storwell.
11.3 Subject as expressly provided in these Conditions, and except where the Goods are sold or the Services provided 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.
11.4 Where the Goods are sold or the Services are provided under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Purchaser are not affected by these Terms.
11.5 A claim by the Purchaser 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 Purchaser) be notified to Storwell within three 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 Purchaser does not notify Storwell accordingly, the Purchaser shall not be entitled to reject the Goods and Storwell shall have no liability for such defect or failure, and the Purchaser shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
11.6 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to Storwell in accordance with these Terms, Storwell may replace the Goods (or the part in question) free of charge or, at Storwell.s sole discretion, refund to the Purchaser the price of the Goods (or a proportionate part of the price), in which case Storwell shall have no further liability to the Purchaser.
11.7 Except in respect of death or personal injury caused by Storwell.s negligence, or liability for defective products under the Consumer Protection Act 1987, Storwell shall not be liable to the Purchaser 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 loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Storwell, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or the Services (including any delay in supplying or any failure to supply the Goods or the Services in accordance with the contract or at all) or their use or resale by the Purchaser, and the entire liability of Storwell under or in connection with the contract shall not exceed the price of the Goods, except as expressly provided in these Terms. 11.7 Storwell shall not be liable to the Purchaser or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform, any of Storwell.s obligations in relation to the Goods or the Services, if the delay or failure was due to any cause beyond Storwell.s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond Storwell.s reasonable control:
11.7.1 Act of God, explosion, flood, tempest, fire or accident;
11.7.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
11.7.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Storwell or of a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery.
12. DESCRIPTION, DRAWINGS, DATA, CONFIDENTIAL INFORMATION
12.1 Storwell reserves the right to change and improve the design of some or all the component parts included in the quotation and thereafter supplied accordingly.
12.2 All drawing documents or other information supplied by Storwell are supplied on the express condition that the Purchaser will not without the written consent of Storwell:-
12.2.1 give away, lend, exhibit or sell any such drawings of extracts there from or copies thereof;
12.2.2 use them in any way except for the purpose of installing or operating the Goods for which they are issued.
12.3.1 All illustrations, data, text and schedules contained in Storwell’s printed brochures and sales literature form no part of the contract. The Purchaser acknowledges that all descriptions, specifications, drawings and details of weights and dimensions produced by Storwell are approximates only. 12.3.2 The Purchaser shall be responsible for the accuracy of all information and drawings supplied by it and Storwell shall not be under any responsibility to check the accuracy thereof.
12.4 Copyright and other intellectual property rights in respect of all drawings and other documents prepared by Storwell shall vest in and remain the property of Storwell.
13. TRADEMARKS, PATENTS, COPYRIGHT
13.1 Where Goods or Services consist of any article to be manufactured, altered or worked upon by Storwell in accordance with the design, specifications or instructions of the Purchaser, the Purchaser warrants that any such article shall not in any way infringe any letters patent, copyright or any other protection subsisting in favour of third parties and agrees to indemnify Storwell against all actions, claims and demands, including any costs and expenses incurred by Storwell.
13.2 In the event of any claim being made against the Purchaser in respect of infringement of letters patent, copyright or other protection in respect of Goods or Services designed and supplied by Storwell, Storwell shall be at liberty at its absolute discretion to conduct all negotiations for the settlement of any such claim or any litigation or proceedings which may arise therefrom.
14.1 No responsibility is accepted by Storwell for failure to comply with any statutory or other regulations or local by-laws affecting the siting, use, operation or construction of the Goods. All consents and approvals required shall be obtained by the Purchaser.
14.2 All fees or charges made by Local Authorities in connection with regulations or the passing of plans will be payable by the Purchaser.
15. LAW AND JURISDICTION
The Contract shall be governed and construed in all respects in accordance with the Laws of England & Wales and shall, unless Storwell otherwise determines be subject only to the jurisdiction of the English Courts.
16. RIGHT OF SET-OFF (AND COUNTER CLAIMS)
No right of set-off shall exist in respect of any claims by the Purchaser against Storwell and the Purchaser shall not withhold all or any part of any payment which has become due to Storwell for work done for any reason whatsoever.
17. ASSIGNATION BY THE PURCHASER
The Purchaser shall not make any composition or arrangement with or assignation for the benefits of his creditors in respect of Storwell’s Goods or Services without Storwell’s agreement in writing.
18.1 Waiver by Storwell of any breach of the Contract by the Purchaser shall not be considered as a waiver of any such subsequent breach of the same or any other provision.
18.2 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditionsand remainder of the provision in the question shall not be affected thereby.
18.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoices or other document or information issued by Storwell shall be subject to correction without any liability on the part of Storwell.
18.4 Storwell’s employees or sub-contractors are not authorised to make any representations concerning the Goods or Services unless confirmed by Storwell in writing. On entering into the Contract the Purchaser acknowledges that it does not rely on, and waives any claims for breach of, any such representations which are not so confirmed.
18.5 Any reference in these Conditions to the provisions of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
19.1 This condition 19 applies if:
19.1.1 The Purchaser commits any material breach of any of the provisions of the contract and in the case of a breach which is capable of remedy fails to remedy it within 30 days of receipt of a written notice requiring it to be remedied; or
19.1.2 the Purchaser makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or a moratorium comes into force in respect of the Purchaser (within the meaning of the Insolvency Act 1986); or
19.1.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Purchaser; or
19.1.4 the Purchaser ceases, or threatens to cease, to carry on business; or
19.1.5 suffers distress to be levied on its goods; or
19.1.6 Storwell reasonably apprehends that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly.
19.2 If this clause applies then, without limiting any other right or remedy available to Storwell, Storwell may cancel the contract or suspend any further deliveries under the contract without any liability to the Purchaser, 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.