Terms & Conditions of Trading
1.1 In these conditions
1.1.1 ‘ The Company’ means:
(i) Metal Supermarkets UK Limited, or
(ii) If the contract of sale and purchase of the Goods is being fulfilled by a franchisee trading under the style ‘Metal Supermarkets’, that franchisee.
1.1.2 ‘The Conditions’ means the terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Company and the Customer.
1.1.3 ‘ The Customer’ means the person firm or company purchasing or agreeing to purchase goods from the Company in accordance with the Conditions
1.1.4 ‘ Contract’ means the contract between the Company and the Customer for the sale and purchase of the Goods
1.1.5 ‘ Goods’ means all goods materials or any part thereof being the subject of any contract to which the Conditions apply together with any services supplied to the Customer by the Company or by any third party on behalf of the Company
1.1.6 ‘Order’ means the Customer’s written or oral order for Goods.
1.1.7 ‘Price’ means the price(s) quoted by the Company and set out in a written confirmation of Order from the Company to the Customer (or when no price has been quoted a reasonable price) excluding VAT other taxes and of packing and delivery.
1.1.8 ‘The Supplier’ means the suppler or the manufacturer of the Goods
1.1.9 ‘VAT’ means the value added tax at the rate from time to time in force
1.2 The Company shall sell and the Customer shall purchase the Goods in accordance with the terms agreed orally or in writing with the Customer subject in either case to the Conditions which shall govern the Contract to the exclusion of any other terms and conditions and in placing an Order the Customer shall be deemed to have read and accepted the Conditions
1.3 No variation to the Conditions shall be binding unless agreed in writing by the authorised representative of the Company.
1.4 No agent or employee of the Company has authority to make any representation or otherwise transact business with the Customer for the sale of Goods other than in accordance with the Conditions. The Customer therefore acknowledges that it does not rely upon any representations other than those representations confirmed in writing by the Company or which are contained in any Suppliers specification for the Goods supplied to the Customer by the Company.
2 THE GOODS
2.1 Notwithstanding clause 1.4 the Company shall be entitled to alter the specification of the Goods :
a) To reflect technological changes and current availability; or
b) In order to conform with any applicable safety or other statutory or EU requirements; or
c) Which do not materially affect the quality or fitness for purpose of the Goods; or
d) Where the Goods are to be supplied to the Customer’s specification to the extent that such alteration has been effected by the Supplier and does not materially affect their quality or fitness for purpose
2.2 Where the Customer requires Goods to comply with a specification such specification shall be supplied to the Company at the time of Order. Subject to clause 2.1 the Company will then endeavour to secure Goods to the required specification.
2.3 The Company shall have no liability for any alleged failure of Goods to conform to the contract specification unless such failure is notified within 72 hours of their being delivered (time being of the essence in respect of this clause)
2.4 Any typographical, clerical or other error or omission in any brochure, sales literature, Supplier’s specification, quotation, price list, Order, invoice or other documentation shall be subject to correction without liability on the part of the Company unless such correction fundamentally changes the Customer’s obligations under the contract to the Customers detriment in which case the Customer shall be entitled to cancel the Contract within seven (7) days of notification by the Company of such a fundamental change. In the event of cancellation by the Customer pursuant to this clause, the Company shall return to the Customer any deposit paid.
2.5 CE Marking and the Construction Products Regulation (CPR). Upon order placement you will be required to indicate if the Goods to which your order relates are intended for use and / or sale for use in a construction setting and therefore require the application of applicable CE markings and, if applicable, it shall be your responsibility to confirm the relevant execution class for which a CE mark is required. The Company shall only apply CE markings to any Goods if indicated as being required by you and in the execution class you have confirmed as applicable and the Company shall have no responsibility for advising you or determining on your behalf whether a CE mark is required and, if so, which execution class is applicable. Nor shall the application of a CE marking by the Company at your request and / or based on the information provided by you indicate or imply any liability on the part of the Company for determining that such CE marking is accurately applied or correctly reflects the purpose for which you intend to use the supplied Goods.
2.5.1 If your order is silent on the issue of CE marking and if no relevant process is being applied to the Goods by the Company, the Company shall transfer to you the benefit of any certification given by the original producer or supplier of the Goods to the extent relevant.
3 PRICE AND PAYMENT
3.1 Any quoted prices are subject to acceptance by the Customer within 24 hours and may be varied by the Company by giving notice to the Customer at any time before delivery to reflect increased costs from its Supplier or resulting from market conditions at the date of contract or other factors beyond the Company’s control.
3.2 Notwithstanding clause 3.1 where the Customer is a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) and the Company gives notice of an increase in the Price pursuant to clause 3.1 the Customer shall have the right to cancel the Contract within seven (7) days of the receipt by him of such notice if the increase is in excess of 10 per cent of the Price failing which such increase shall be added to the Price. The right to cancel shall not apply in respect of any alteration necessary as a consequence of any increase in or imposition of any taxes or duties.
3.3 Any failure by the Customer to accept delivery of or to collect the goods shall not in any way whatsoever allow the Customer to avoid the liability to pay for Goods.
3.4 The Customer expressly acknowledges liability to pay the Company in accordance with the credit terms imposed by the Company or on demand:
3.4.1 The charges in respect of the Goods;
3.4.2 On a full indemnity basis the Company’s costs howsoever arising to obtain repayment of all sums due to the Company including, but not limited to, all costs and fees of collection together with interest accruing thereon;
3.4.3 VAT or local or other taxes payable in respect of the above.
3.5 In addition to the Price of the Goods and other charges and taxes set out herein the Customer agrees to pay to the Company interest on all amounts outstanding from the Customer to the Company after the period of credit imposed by the Company has expired. Such interest shall be equal to 10 per cent per annum above the base-lending rate of Bank of Scotland plc from day to day. The Customer acknowledges that no forbearance on the part of the Company in respect of this clause shall be construed as a condition precedent in respect of any future invoices and the liability of the Customer shall be at the sole discretion of the Company.
3.6 In the event of that the Customer suffers distress or execution to be levied against his or its effects, makes an arrangement or composition with creditors or, being a corporate body, enters into liquidation, a Company Voluntary Arrangement, or Administration order, or has a receiver appointed to the whole or part of its undertaking or, being an individual, has a bankruptcy order made against him or enters into an Individual Voluntary Arrangement, or any failure by the Customer to make payment in accordance with these terms and conditions, in addition to the powers herein set out the Company shall be entitled to demand forthwith repayment of all sums due from the Customer (including costs, interest etc.) irrespective of any previously agreed credit terms and interest shall accrue in accordance with the provisions herein set out on such full outstanding balance from the date of such demand.
3.7 Without prejudice to the Company’s rights as set out in clause 9.1 herein in the event of a demand being made by the Company, it shall be entitled to defer or cancel any further deliveries and treat the contract of which these terms and conditions form part as determined but without prejudice to its rights to any unpaid sums as set out in clause 3.5, interest, and to damages for any loss suffered in consequence thereof.
4. DELIVERY AND RISK
4.1 The time for delivery or collection of the Goods or completion of services forming part of the Goods shall not be of the essence and any times given are estimates only and failure to comply with those estimates shall not be in breach of Contract.
4.2 The Goods shall be at the Customer’s risk from the time the Goods are collected by or on behalf of the Customer from the Company’s premises, or in the event that the Customer has failed or neglected to collect the same from the date and time that the Customer was notified that the Goods were available for collection. If the Goods are delivered to the Customer’s premises by the Company, then they shall be at the Customer’s risk from the time the Goods enter the Customer’s premises or that such delivery was refused. The Company reserves the right to make a charge to cover any extra costs involved for delivery to a different address or for storage of the Goods.
4.3 The Customer is required to inspect the Goods immediately upon delivery and to notify the Company of any defects or complaints within 72 hours. Failure to notify the Company within such period shall be deemed acceptance of the Goods by the Customer.
4.4 The Company reserves the right to consider complete any Order in request of which delivery of within 5% (more or less) of the quantity or weight has been made.
4.5 If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of the Company’s fault) then without prejudice to any other right or remedy available to the company the Company may:
a) Store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
b) Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the Price or charge the Customer for any shortfall below the Price.
5 PROPERTY IN GOODS
5.1 Notwithstanding risk in the Goods passes to the Customer in accordance with clause 4.2 the Goods shall remain the sole and absolute property of the Company and title to and legal and equitable ownership of the Goods shall not pass to the Customer until payment is received by the Company for all monies due from the Customer to the Company on any account.
5.2 Until payment is made in full of all monies due from the Customer to the Company on any account the Customer is in possession of the Goods solely as fiduciary agent and bailee for the Company and the Company may require the Customer to redeliver the Goods to the Company, failing which the Company shall be entitled to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods. The Customer may sell or use the Goods in the ordinary course of business (whether in their original form or otherwise) but until the Customer has discharged all its payment obligations to the Company as aforesaid, all prices of such sale or use shall be the property of the Company and held on trust by the Customer and the Customer shall account to the Company accordingly.
6 REPLACEMENT OF DEFECTIVE GOODS
6.1 The Company will at its option replace or refund the cost of Goods which are notified as being defective within 72 hours of the date of delivery or the date of collection of the Goods and which are accepted as being defective by the Company.
6.2 The Company’s obligations contained in sub clause 6.1 are subject to:
a) The Goods having been transported in an appropriate manner;
b) The Goods being returned to the Company at the Customer’s expense;
c) The Goods not having been misused or modified otherwise than by the Company or (otherwise interfered with).
6.3 The Company shall not be liable in respect of any defect to the Goods due to wilful damage, negligence, abnormal working conditions nor in respect of Goods damaged by vandalism or damaged by processes to which the Goods have been subjected at the direction of any person other than the Company, or in respect of any failure to follow the Company’s instructions (whether oral or in writing).
6.4 Any replacement Goods will be returned to the Company carriage paid and the Customer shall bear any costs of dismantling or re-assembly.
6.5 The Company shall be under no liability in respect of any defect in the Goods arising from any drawing design or specification supplied by the Customer.
6.6 If the Company has supplied Goods which the Company has itself obtained from a Supplier the Company shall use its best endeavours to enforce for the Customer’s benefit such express or implied guarantees or warranties given to it by the Supplier but no other conditions or warranties shall be implied or construed as applying to the Goods.
6.7 The Company shall be under no liability under any warranty, condition or guarantee if the Price and VAT has not been paid by the Due Date.
7. LIABILITY AND WARRANTY
7.1 Except in respect of death or personal injury caused by the Company’s negligence the Company shall not be liable to the Customer by reason of any representation or any implied warranty condition or other term or any duty at common law or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs expenses or other claims through consequential compensation whatsoever (and whether caused by the negligence of the Company its employees or agents or otherwise) which arise out of or in connection with the supply of Goods (or their use or resale by the Customer) except as expressly provided in the Conditions.
7.2 Any liability of the Company hereunder (except in respect of death or personal injury caused by the Company’s negligence) for any delay in performing or any failure to perform any of the Company’s obligations in relation to the Goods shall be limited to the excess (if any) of the cost over the Price to the Customer in the cheapest available market of similar goods to replace those not delivered.
7.3 Where the Company supplies or offers Goods in accordance with the Customer’s own design or specification no condition or warranty is given or implied as to fitness for purpose or suitability for their intended purpose whether known to the Company or not and the Customer shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement or any intellectual property rights of any third party which results from the Company’s use of the Customer’s specifications.
7.4 Save as specifically provided in the Conditions the Company shall have no liability for any defect in the quality of the Goods or their failure to correspond with any description or sample or to be fit for any purpose and all other conditions, warranties, stipulations and undertakings, whether express or implied by statute or common law excluded to the fullest extent permitted by law.
7.5 Where the Goods are sold under a Consumer Transaction (as defined by the Consumer Transactions (restrictions on statements) Order 1976) the statutory rights of the Customer are not affected by the Conditions.
8.1 A Contract may only be cancelled by the Customer if the previous consent in writing of the Company is given.
8.2 Without prejudice to any other right or remedy available to the Company the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability on the part of the Company to the Customer 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 in the event that:
a) The Customer makes any voluntary arrangement with its creditors or becomes subject to any Administration Order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);
b) An encumbrancer takes possession or a Receiver is appointed of any of the property or assets of the Customer;
c) The Customer (if not a consumer within the meaning of the Unfair Contract Terms Act 1977) cease or threatens to cease to carry on the business;
d) The Customer breaches any of the Conditions;
e) The Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.1 If the performance of the Contract by the Company shall be delayed by any circumstances or conditions beyond the control of the Company the Company shall have the rights at its option either:
a) To suspend further performance of the Contract until such time as the cause of the delay shall no longer be present; or
b) To be discharged from further performance of any liability under the Contract and if the Company exercise such right the Customer shall thereupon pay the Price less a reasonable allowance for what has not been performed by the Company. For the purpose of the Conditions circumstances or conditions beyond the control of the Company shall include but shall not be limited to restrictions imposed by a government or other competent authority strike lockout or other action taken by employees in contemplation or furthermore of a dispute or failure in the Company’s anticipated supplies or materials.
9.2 The Company and the Customer hereby confirm that any exemption from liability granted to the Company by these Conditions shall also extend to every employee of the Company.
9.3 The Company may assign all or any of its rights and obligations under these conditions without notice to the Customer. The Customer shall not be entitled to assign its rights or obligations under the Conditions.
9.4 No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
9.5 No failure by the Company to exercise any power given to it or to insist upon restrict compliance by the Customer with any obligation hereunder and no custom or practice of the parties at variance with the terms hereof shall constitute any wavier of any of the Company’s rights under the Contract.
9.6 Any reference in the Conditions to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time.
9.7 If any provision hereunder is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Conditions and the remainder of the provisions in question shall not be affected thereby The Conditions shall be governed by and construed in accordance with English Law and the parties shall submit to the exclusive jurisdiction of the English Courts.
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