1.1 In these Conditions the following words have the following meanings
the Buyer: the person(s), firm or company who purchases the Goods from the Company
the Company: Leisure Control International Ltd whose registered office is at 2c Clump Farm Industrial Estate, Higher Shaftsbury Road Blandford Forum Dorset DT11 7TD (Company Number 5131915)
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions
Delivery Point: the place where delivery of the Goods is to take place under condition 5
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them)
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 The headings in these Conditions will not affect the construction of these Conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, account application, specification or other document
2.2 No terms or conditions endorsed upon, delivered with or contained in the Customer's purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company's sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a duly authorised officer of the Company. Nothing in this Condition will exclude or limit the Company's liability for fraudulent misrepresentation.
2.4 Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
3. ORDERS AND SPECIFICATIONS
3.1 Each order which if so accepted shall constitute a legally binding contract between the Company and the Buyer and such contract is hereafter referred to in these conditions as an “Order”.
3.2 The Buyer shall be responsible for ensuring the accuracy of any Order and for ensuring that they have supplied all salient and relevant information to the Company so as to permit the Company to fulfil the Order.
3.3 Once an Order has been accepted by the Company it cannot be cancelled or amended without the prior written agreement of the Company.
3.4 The quantity, quality and description of the goods and any specification for the goods shall be those set out in the quotation or the Company’s acknowledgement of the Buyer’s Order
4.1 Customers should provide the full delivery address and contact phone number. Once the Order is ready for despatch the Company shall arrange for a carrier to deliver the goods at the Buyer’s cost.
4.2 Any time or date given for delivery given by the Company is given in good faith, but is an estimate only and the Company accepts no liability in respect of late delivery.
4.3 Risk in all goods shall pass to the Buyer upon delivery.
4.4 The Company reserves the right to deliver the Order in instalments if practicable to do so. Once the goods or any part of the goods has been delivered the Company reserves the right to raise an invoice in respect of the goods delivered.
4.5 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
4.6 Subject to the other provisions of these Conditions the Company will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company's negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 60 days.
4.7 If for any reason the Buyer will not accept delivery of any of the Goods or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.7.1 risk in the Goods will pass to the Buyer(including for loss or damage caused by the Company's negligence);
4.7.2 the Goods will be deemed to have been delivered; and
4.7.3 the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.8 The Buyer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for accepting delivery of the Goods. The Company will not be held liable for any delay, damage or additional cost that results from the site or facilities being unsuitable or inaccessible or for insufficient labour being available to affect delivery.
4.9 Weekend delivery is not available.
5. INSPECTION, DEFECTS AND NON-DELIVERY
5.1 The Buyer must inspect the Goods immediately upon delivery and subject to the provisions of Condition 11 below the Company shall not be liable for any defect in the Goods unless written notice is given within 24 hours of the date of delivery.
5.2 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 Buyer on delivery, unless conclusive evidence is provided to the contrary.
5.3 The Company will not be liable for non-delivery of goods unless written notice is received by the Company within 5 days of the date when the Goods should have been delivered.
5.4 Any liability of the Company for non-delivery or non-performance or for Goods notified as defective on delivery shall be limited to replacement of the Goods within a reasonable time or to a refund of the price paid in respect of the Goods
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Customer, the Buyer must:
6.3.1 hold the Goods on a fiduciary basis as the Company's bailee;
6.3.2 maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
6.3.3 hold the proceeds of the insurance referred to in condition 6.3.2 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
6.4 The Buyer’s right to possession of the Goods shall terminate immediately if:
6.4.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
6.4.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
6.4.3 the Buyer encumbers or in any way charges any of the Goods.
6.5 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.6 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer's right to possession has terminated, to recover them.
7.1 The price for the goods is as set out in the quotation provided to the Buyer or as published in the Company’s current published price list. All prices quoted are valid for 30 days or until earlier acceptance by the Buyer.
7.2 The Company reserves the right to alter the price of the goods at any time in its absolute discretion.
7.3 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
8. NEW ACCOUNTS
8.1 Buyers wishing to open a credit account must supply two trade and one bankers’ reference. The Company may undertake a search with a credit reference agency before providing credit facilities.
8.2 The Company may in its absolute discretion decide to grant, refuse or discontinue any credit limit at any time. In accepting a credit account the Buyer consents to the Company transferring information to third parties who may:
8.2.1 use analyse and assess information about the Buyer and the transactions entered into between the Buyer and the Company
8.2.2 give information about the Buyer and its indebtedness to the Company’s insurers, guarantors or indemnifiers bankers or any third party to whom the Buyer’s indebtedness is transferred in order that they can enforce their rights or comply with their obligations
9.1 Payment of the price for the Goods is strictly within 30 days of the invoice date for account customers or at the time of order for all non-account holding Customers. There are no early settlement discounts. Late payment may result in orders being delayed and or cancelled by the Company.
9.2 Time for payment shall be of the essence.
9.3 No payment shall be deemed to have been received until the Company has received cleared funds.
9.4 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
9.5 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
9.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
10.1 The Company may within four weeks of receipt of an order from the Buyer cancel the Customer's order for any reason whatsoever.
10.2 In the event that the Company cancels the Customer's order under Condition 10.1 above then the Company shall return any part of the purchase price paid in accordance with Condition 9.1 to the Buyer and for the avoidance of doubt shall have no further liability to the Buyer whatsoever.
11.1 For Goods manufactured by the Company, the Company grants the following guarantee:-
11.1.1 That the Goods will be free from defects in material and workmanship for a period of 12 months (3 months in the case of reconditioned Goods, hairdryer handsets and heaters) from the date of despatch by the Company.
11.1.2 Upon notification of a defect within the material or workmanship of the Goods being upheld by the Company the Company shall free of charge at its option either repair or replace the defective Goods PROVIDED THAT: -
(a) Notice of the defect is given to the Company upon its appearance and
(b) Such defects shall be found to have arisen solely from faulty workmanship or materials and
(c) the defective goods shall be returned to the Company at the Buyers expense if so requested by the Company (if the claim is upheld the Company will refund reasonable carriage costs paid by the Buyer)
11.2 The Company shall not be liable for a breach of any of the warranties in condition 11.1.1 if:
11.2.1 the Buyer makes any further use of such Goods after giving such notice; or
11.2.2 the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
11.2.3 the Buyer alters or repairs such Goods without the written consent of the Company.
11.3 If the Company complies with condition
11.1.2 it shall have no further liability for a breach of any of the warranties in condition
11.1.1 in respect of such Goods.
12. LIMITATION OF LIABILITY
12.1 Subject to condition 13 the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
12.1.1 any breach of these Conditions; and
12.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
12.3 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company's negligence or fraudulent misrepresentation.
12.4 the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract price; and
12.5 the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
13. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that, if the event in question continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
14.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
14.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
14.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
14.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
14.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it. 14.6 Where Goods are bought by a Buyer acting as a consumer nothing in these Conditions is to be construed as affecting such a Buyer’s statutory rights under consumer protection legislation.
14.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.
15.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission:
15.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
15.1.2 (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Customer.
15.2 Communications shall be deemed to have been received:
15.2.1 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
15.2.2 if delivered by hand, on the day of delivery;
15.2.3 if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.