Terms of service
These terms and conditions (the Terms) apply only if you are purchasing goods from us as a consumer (i.e., for purposes outside your business, craft or profession) or for trade purposes (i.e., for purposes inside your trade, business, craft or profession).
However different parts of these Terms apply to consumer and trade customers. Part A applies to both consumer and trade customers. Part B applies to consumer customers only. Part C applies to trade customers only.
PART A - APPLYING TO BOTH CONSUMER AND TRADE CUSTOMERS
1. INTRODUCTION
1.1 Who we are. We are Naylor Specialist Plastics Limited trading as Naylor Agility (we, us, our), a company registered in England and Wales under company number 00342012. Our registered office and main trading address is at Naylor House, Valley Road, Wombwell, Barnsley, England, S73 0BS (Registered Office).
2. PURCHASE REQUIREMENTS
2.1 If you are based outside of the United Kingdom. If you are based outside of the United Kingdom and wish to purchase goods from us, please contact us. Although we cannot guarantee we will be able to fulfil your order, we may try to accommodate you.
If you are a consumer customer, further purchase requirements are set out in clause 1 of Part B.
3. PROMOTIONAL MATERIALS
3.1 Promotional Material. Product images on our brochures, catalogues, website and other promotional literature (Promotional Material) are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that a picture accurately reflects the colour of the goods. Your goods may vary slightly from those images. All sizes, weights, capacities, dimensions and measurements indicated on the Promotional Material have a small tolerance. If you are concerned about the precise colour, size, weight, capacity, specification, dimension or measurement of any of goods, please contact us prior to placing an order and/or purchasing those goods.
3.2 Product packaging may vary. The packaging of goods may vary from that shown on Promotional Material.
3.3 Promotional & offer prices. Any promotional or offer prices made available by us will apply only within the scope and period of the promotion or offer concerned and are subject to any applicable additional terms (and restrictions or limits) stated. To take advantage of promotional/offer prices, you may be required to quote the relevant promotion code at the time of your order. If you do not comply with the additional terms of a promotion or offer, we reserve the right to exclude you from the relevant promotion or offer.
4. YOUR ORDER AND CONTRACT WITH US
4.1 How to place your order. You can place an order with us in-person, on our website, by telephone or email.
In-person orders
4.2 When the contract is formed: in-person orders. The contract for in-person orders is formed when we inform you we accept your order. At this point, a legally binding contract will be in place between you and us. We will issue with you an invoice or receipt confirming what your order covers. That invoice or receipt acts as your proof of purchase.
Website, telephone and email orders (we call these ‘distance’ orders)
4.3 How to place an order: distance orders. Our website shopping pages will guide you through the steps you need to take to place an order with us. The order is placed once you have successfully followed the steps and clicked the “pay now” button or similar on the checkout page. Our order process allows you to check and amend any errors before submitting an order to us. Please take the time to carefully read and check your order at each page of the order process. If you are placing an order by telephone or email, we will ask you for the necessary information and confirm your request by email in accordance with clause 4.4 of this Part A.
4.4 Order acknowledgement. After placing an order, you will receive an email from us acknowledging that we have received your order. We will then send you a separate email confirming an order number has been generated for you (Order Acknowledgement). Please note that this Order Acknowledgement does not mean that your order has been accepted by us. The order number is only used to help us identify your order and is not evidence of a binding contract.
4.5 When the contract is formed: distance orders. The contract for distance orders is formed when we have contacted you, either by email or telephone, and agreed with you that we will fulfil your order and agreed the delivery or collection arrangements with you. At this point, a legally binding contract will be in place between you and us.
General order information
4.6 If we are unable to accept your order. In some circumstances, we may be unable to accept your order. This is typically for the following reasons: (a) where goods are out of stock; (b) we cannot authorise your payment; (c) due to unexpected limits on our resources which we could not reasonably plan for; (d) we have identified an error in the price or description of the goods; (e) we are unable to meet a delivery deadline you have specified; (f) you are not allowed to buy the goods from us and/or we are unable to sell them to you; or (g) you have ordered too many goods.
4.7 We will contact you if we are unable to accept your order to discuss how you would like to proceed. Your options in these circumstances may include offering you suitable alternative stock, either at the same price or a different price (if we have discovered an error in the price, the difference in price will be dealt with in accordance with clause 8.4 of this Part A).
4.8 If you do not wish to continue with your order in accordance with clause 4.7 of this Part A or we do not receive a response from you seven days after asking you how you would like to proceed, a refund will be issued to you for the full amount you paid for the goods that have not been supplied (including any delivery costs charged that are associated with the unsupplied goods) as soon as possible and no contract will come into existence.
4.9 What your order covers. The contract will relate only to those goods we have confirmed to you that we are able to supply. We will not be obliged to supply any other goods that may have been part of your order but we have informed you we are unable to fulfil.
4.10 Availability. All orders are subject to availability. We cannot guarantee that any goods will be available at any given time.
5. DELIVERY
If you have chosen to have your order delivered to you, this clause 5 of this Part A applies.
5.1 Delivery costs. We offer free delivery for the majority of orders within Great Britain; however, this may not always be available and you may in certain circumstances have to pay the delivery costs. Where this is the case or for orders outside Great Britain, we will confirm what additional delivery costs apply, and the amount payable.
5.2 When we will deliver the goods. Where we agree to deliver goods to you, we will aim to deliver to you within 12 weeks after the date we have contacted you and agreed to fulfil your order, or such shorter or longer period which we agree with you at that time.
5.3 If you are not present when your order is delivered. If no one is available at your address to take delivery and the goods cannot be posted through your letterbox, you will receive a note informing you of how to rearrange delivery or collect your order from us.
5.4 Failed collection/delivery. If you do not collect the goods from us as arranged or if there has been a failed delivery to you, we will contact you for further instructions and may charge you delivery costs associated with any re-delivery and, to the fullest extent permitted by applicable law, for reasonable storage costs associated with your goods. If, despite reasonable efforts, we are unable to contact you or re-arrange delivery or collection we may end the contract with you.
6. COLLECTING YOUR ORDER
This clause 6 of Part A only applies where you choose to collect your order from us.
6.1 When to collect your order. We will contact you when your order is ready to collect. Please do not attempt to collect your order prior to being notified. Once notified, you can collect the goods at our Registered Office at any time during our opening hours.
6.2 If you do not collect your order. If you do not collect your order within seven days of being notified by us that it is ready for collection in accordance with clause 6.1 of this Part A above, we may, at our discretion, cancel your order.
7. DELIVERY AND COLLECTION GENERALLY
7.1 Responsibility for the goods and when you own them. Once your order has been delivered to your address or in accordance with the delivery instructions you provided to us or you collect the goods, the risk in the goods passes to you and the goods are classed as having been ‘delivered’. This means that you are responsible for the goods and we are not liable to you if the goods are stolen or damaged after they have been delivered to you. Ownership of the goods passes to you once you have paid for them in full.
7.2 Examining your goods. Please examine the goods as soon as reasonably possible after delivery or collection and notify us of any fault or damage as soon as reasonably possible.
7.3 Delivering your order in instalments. We may deliver your goods or make them available for collection in instalments. Where we do so, we will inform you this is the case prior to delivery or collection.
Further terms related to delivery and collection are set out in: (a) clause 2 of Part B if you are a consumer customer; and (b) clause 2 of Part C if you are a trade customer.
8. PRICE AND PAYMENT
8.1 Where to find the price. The price of the goods that apply to your order will be as quoted on the Promotional Material or agreed between you and us from time to time. All prices are in pounds sterling (£)(GBP). We take all reasonable care to ensure that the prices of our goods are correct. However please see clause 8.4 of Part A for what happens if we discover an error in the price of the goods you order.
8.2 We will pass on changes in the rate of VAT. Our prices are displayed inclusive of Value Added Tax (VAT). You will always be charged the price of the goods including any applicable VAT. If the rate of VAT changes between the date of your order and the date of delivery, we will adjust the VAT you pay, unless you have already paid for the goods in full before the change in VAT takes effect.
8.3 Price of delivery. If there is a delivery cost, it will be notified to you in accordance with clause 5.1 of Part A above.
8.4 What happens if the price of your goods is wrong. It is always possible that, despite our reasonable efforts, some of goods may be incorrectly priced. We will normally check prices before accepting your order so that, where the good’s correct price at your order date is less than the stated price at your order date, we will charge you the lower amount. If the good's correct price at your order date is higher than the price stated, we will contact you for your instructions before we accept your order. If we accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may later end the contract, refund you any sums you have paid and require the return of any goods provided to you.
8.5 Accepted payment methods. We accept payment using the credit and debit cards referred to on our website. If you are placing an order in-person, we also accept cash payment subject to a maximum of £500.
8.6 When payment is due. Unless agreed with us in writing, you must pay for the goods and all applicable delivery charges before we dispatch or you collect them.
8.7 What to do if you think an invoice is wrong. If you think an amount we have charged you is wrong, please contact us promptly.
8.8 Security. We will do all that we reasonably can to ensure that all the information you give us when paying for the goods is secure by using an encrypted secure payment mechanism. However, in the absence of negligence on our part, any failure by us to comply with the contract or our Privacy Policy (see clause 13.2 of this Part A) or breach by us of our duties under applicable laws, we will not be legally responsible to you for any loss that you may suffer if a third party gains unauthorised access to any information that you give us.
If you are a trade customer, further price and payment terms are set out in clause 1 of Part C.
9. OUR RIGHTS TO MAKE CHANGES
9.1 Minor changes to the goods. We may change goods ordered by you prior to delivery: (a) to reflect changes in relevant laws and regulatory requirements; or (b) to implement minor adjustments and improvements. These changes will not affect your use of the goods, but we will (unless the changes are very minor) notify you in writing at the time of supply which changes have been made and, where necessary, explain why they were necessary.
9.2 More significant changes to the goods. In addition, we may in certain cases occasionally have to make more significant changes to the goods ordered by you prior to delivery. If we do so, we will notify you in advance, and you may then contact us to end the contract and receive a full refund of any price paid before the changes take effect.
10. HOW TO CONTACT US
10.1 How to contact us. You can contact us, by doing one of the following: (a) visiting us at our Registered Office; or (b) phone, email or post. Call, email or write to us, the details for which will be included in your invoice or dispatch confirmation email. Please provide your name, address, your order number and, where available, your phone number and email address.
11. RIGHTS TO SUSPEND THE SUPPLY OF GOODS OR END THE CONTRACT
11.1 Why we may suspend the supply of goods to you. In rare cases, we may be required to suspend the supply of goods to you. This is typically for the following reasons: (a) to deal with technical problems or make minor technical changes; (b) to update the goods to reflect changes in relevant laws and regulatory requirements; or (c) to make changes to the goods as requested by you or notified by us to you.
11.2 Suspending the supply of goods or ending the contract. If you do not pay us for the goods when you are supposed to, we may suspend the supply of the goods until you have paid us the outstanding amounts, or we may otherwise end the contract. We may also notify you that we are going to stop supplying any goods and will refund any sums you have paid in advance for goods which will not be provided.
If you are a trade customer, further suspension and termination terms are set out in clause 7 of Part C.
12. IF YOU WISH TO COMPLAIN
12.1 How to make a complaint. We are very proud of our high standards of customer service, however, in the event that we fail in meeting these standards, please inform us in accordance with clause 10.1 of this Part A.
13. HOW WE MAY USE YOUR PERSONAL INFORMATION
13.1 How we will use your personal information. We will use the personal information you provide to us: (a) to supply the goods to you; (b) to process your payment for your purchase; and (c) if you agreed to this during the order process or, if we have a lawful basis to do so, to inform you about similar goods that we provide, but you may stop receiving these communications at any time by contacting us.
13.2 We only use your personal information in accordance with our Privacy Notice, available to view on the website. Please take the time to read our Privacy Notice, as it includes important terms which apply to you, and explains how we safeguard any data which you provide to us for us to fulfil your orders.
14. RIGHTS TO VARY THESE TERMS
14.1 We may amend these Terms from time to time. Every time you place an order with us, the terms in force at the time of your order will apply to the contract between you and us.
14.2 Reasons for revising these Terms. We may revise these Terms from time to time. This might happen in the following circumstances (which are illustrative rather than exhaustive): (a) changes in how we accept payments from you; (b) changes in market conditions affecting our business; (c) changes in relevant laws and regulatory requirements; or (d) changes in the goods we offer.
14.3 What happens if we revise these Terms. If we revise these Terms as they apply to your order, we will contact you to give you reasonable advance notice of the changes and let you know how to cancel the contract if you are not happy with the changes. You may cancel either in respect of all the affected goods or just the goods you have yet to receive. If you opt to cancel, you will have to return or make available for collection by us (at our cost) any relevant goods you have already received and we will arrange a full refund of the price you have paid, including any applicable delivery charges.
15. OTHER IMPORTANT TERMS
15.1 We may transfer our rights to someone else. We may transfer our rights and obligations under these Terms. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the contract.
15.2 You need consent to transfer your rights to someone else. You may only transfer your rights or your obligations under the contract to another person if we agree to this in writing.
15.3 Nobody else has any rights under the contract. The contract is between you and us. No other person shall have any rights to enforce any of its terms.
15.4 If a court finds part of the contract illegal, the rest will continue in force. Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
15.5 Even if we delay in enforcing the contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under the contract or if we delay in taking steps against you in respect of your breaking the contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the goods, we can still require you to make the payment later.
15.6 Which laws apply to the contract, and where you may take legal action. For consumer customers this is set out in clause 9.1 of Part B, and for trade customers this is set out in clause 9.1 of Part C.
PART B - TERMS THAT ONLY APPLY TO CONSUMER CUSTOMERS
Please note, the Terms in this Part B only apply if you are a consumer customer.
1. PURCHASE REQUIREMENTS CONTINUED
1.1 Who can make a purchase. By purchasing goods from us, you confirm that you are: (a) a consumer; (b) at least 18 years old and legally capable of entering a contract with us; and (c) resident in the United Kingdom.
2. DELIVERY AND COLLECTION GENERALLY CONTINUED
2.1 Delays outside of our control. If delivery or collection is delayed by an event outside our control, we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. If there is a risk of substantial delay, you may contact us to end the contract and receive a refund for any goods you have paid for but not received.
2.2 Your legal rights if we deliver/make goods available for collection late. You have legal rights if we deliver or make available for collection any goods late. If we miss the delivery or collection deadline for any goods then you may treat the contract as at an end straight away if any of the following apply: (a) we have refused to deliver the goods or make them available for collection; (b) delivery/availability for collection within the delivery deadline was essential (considering all the relevant circumstances); or (c) you told us before we accepted your order that delivery/availability for collection within the delivery deadline was essential.
2.3 Setting a new deadline for delivery/collection. If you do not wish to treat the contract as at an end straight away, or do not have the right to do so under clause 2.1 of this Part B, you can give us a new deadline for delivery/availability for collection, which must be reasonable, and you can treat the contract as at an end if we do not meet the new deadline.
2.4 Ending the contract for late delivery. If you do choose to treat the contract as at an end for late delivery/availability for collection under clauses 2.1 or 2.3 of this Part B, you can cancel your order for any of the goods or reject goods that have been delivered. If you wish, you can reject or cancel the order for some of those goods (not all of them), unless splitting them up would reduce their value. After that we will refund any sums you have paid to us for the cancelled goods and their delivery. If the goods have been delivered to you or you have already collected them, you must either return them to us, post them back to us or (if they are not suitable for posting) allow us to collect them from you, in any event, within 14 days of delivery/collection. We will pay the costs of postage or collection. Please contact us for a return label or to arrange collection.
3. YOUR RIGHTS TO MAKE CHANGES AND END THE CONTRACT
3.1 Your rights to end the contract. Your rights to end the contract will depend on what you have bought, how you bought it, whether there is anything wrong with it, how we are performing and when you decide to end the contract: (a) if you want to end the contract because of something we have done or have told you we are going to do, please see clause 3.2 of this Part B for further information; (b) if what you have bought is faulty or mis-described you may have a legal right to end the contract (or to get the goods repaired or replaced or to get some or all of your money back), please see clause 4 of this Part B for further information; and (c) if you have just changed your mind about the goods that you bought at a distance (i.e. via the website, email or telephone), please see clause 5 of this Part B.
3.2 Ending the contract because of something we have done or are going to do. You have the right to end the contract for the reasons set out at (a) to (e) below. If you exercise this right by requesting this from us, the contract will end and we will refund you in full for any goods which have not been provided in accordance with these Terms. The reasons are: (a) we have told you about an upcoming change to the goods or these Terms that apply to your order which you do not agree to; (b) we have told you about an error in the price or description of the goods you have ordered and you do not wish to proceed; (c) there is a risk that supply of the goods may be significantly delayed because of events outside our control; (d) we have suspended supply of the goods for technical reasons, or notify you we are going to suspend them for technical reasons, in each case for a period of more than 3 weeks; or (e) you have a legal right to end the contract because of something we have done wrong.
3.3 Making changes. If you wish to make a change to your order before it is delivered or before it is ready for collection, please contact us. We will let you know if the change is possible. If it is possible, we will let you know about any changes to the price of the goods(s), the timing of supply or anything else which would be necessary because of your requested change and ask you to confirm whether you wish to go ahead with the change.
4. IF THERE IS A PROBLEM WITH YOUR GOODS
4.1 The Consumer Rights Act 2015 gives you certain legal rights (also referred to as ‘statutory rights’). Any goods that you purchase from us must: (a) be of satisfactory quality; (b) be fit for purpose; and (c) fit the description provided when you purchased the goods.
4.2 How your rights differ. During the expected lifetime of your goods, your legal rights entitle you to the following: (a) up to 30 days: if your item is faulty, then you can get a refund; (b) up to six months: if it can’t be repaired or replaced, then you’re entitled to a full refund, in most cases; and (c) up to six years: if the goods do not last a reasonable length of time, you may be entitled to some money back. This is a summary of some of your key rights. For detailed information from Citizens Advice please visit www.citizensadvice.org.uk or call them on 0808 223 1133.
4.3 Exercising your rights. If you believe goods you have purchased from us are not as described, are not fit for its purpose, or are not of satisfactory quality, please contact us to discuss a resolution. We will ask you to provide certain information about the goods to enable us to investigate and resolve the issue and we may offer a repair, exchange or refund. Nothing in the contract affects your legal rights under Consumer Rights Act 2015. You may also have other rights in law.
5. UNWANTED GOODS BOUGHT AT A DISTANCE (WEBSITE, TELEPHONE AND EMAIL ORDERS)
5.1 Right to cancel distance orders. You can cancel the contract within 14 days without giving any reason if you ordered the goods at a distance. However, for some goods bought at a distance you do not have the right to cancel or you may lose the right to cancel in certain circumstances. This is further explained in clause 6 of this Part B below.
5.2 How long do you have to change your mind? How long you have depends on how the goods you ordered at a distance are delivered. The cancellation period will expire 14 days after the day on which you, or someone you nominate, receives: (a) the goods (unless one of the options below applies to your order); (b) the last good (if you ordered multiple goods in one order and they are being delivered separately); (c) the last lot or piece (if you ordered a good that consists of multiple lots or pieces); or (d) the first good (if you ordered goods to be delivered regularly over a set period of time).
5.3 Exercising your right. If you are exercising your right to change your mind under this clause 5 of this Part B, you can inform us of your decision to cancel by a clear statement (e.g., a letter sent by post or email; please see clause 10.1 of Part A for our contact details) or by using the cancellation form below (but use of that form is not obligatory):
Model cancellation form
To Naylor Agility:
I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract for the sale of the following goods [*]/for the supply of the following service [*]:
Ordered on [*]/received on [*]:
Name of consumer(s):
Address of consumer(s):
Signature of consumer(s) (only if this form is notified on paper):
Date:
[*] Delete as appropriate.
5.4 When the cancellation deadline is met. To meet the cancellation deadline for distance orders, it is sufficient for you to send your cancellation request before the cancellation period has expired.
6. WHEN YOU DON’T HAVE THE RIGHT TO CHANGE YOUR MIND
6.1 You do not have a right to change your mind under clause 5 of this Part B in respect of any goods which: (a) have been made to your requirements or specifications, or are clearly personalised; (b) are sealed for health or security protection or hygiene purposes, once these have been unsealed after you receive them; (c) are liable to deteriorate or expire rapidly; or (d) which become mixed inseparably with other items after their delivery.
7. EFFECTS OF YOUR CANCELLATION
7.1 Returning goods after ending the contract. If you end the contract for any reason after goods have been dispatched to you or you have received them, you must return them to us. You must either return the goods in person to our Registered Office, post them back to us or (if they are not suitable for posting) allow us to collect them from you. We do not have to offer a collection if you are exercising your right to change your mind under clause 5 of this Part B or if you are not exercising your right to end the contract as a result of something we have done wrong.
7.2 When we will pay the costs of return. We will pay the costs of return: (a) if the goods are faulty or mis-described; or (b) if you are ending the contract because we have told you of an upcoming change to the goods or these Terms as they apply to your order, an error in pricing or description, a delay in delivery due to events outside our control or because you have a legal right to do so because of something we have done wrong. In all other circumstances (including where you are exercising your right to change your mind under clause 5 of this Part B) you must pay the costs of return (including, any costs of collection, where we agree to collect the goods from you).
7.3 What we charge for collection. If you are responsible for the costs of return and we are collecting the goods from you, we will charge you a collection charge notified by us.
7.4 Method of refund. We will make the refund using the same payment method you used to make your purchase unless we both have expressly agreed otherwise.
7.5 Deductions: We may make a deduction from the refund for loss in value of any goods supplied, if the loss is the result of your handling of the goods in a way beyond what is necessary to establish the nature, characteristics and functioning of the goods (e.g. beyond what might reasonably be permitted in a shop). If we refund you the price paid before we can inspect the goods and later discover you have handled them in an unacceptable way, you must pay us an appropriate amount.
7.6 Refunds. If you are exercising your right to change your mind under clause 5 of this Part B, we will refund all payments received from you, including the cost of standard delivery. We will only refund the cost of standard delivery in such circumstances, even if you chose a more expensive delivery option.
7.7 Issuing Refunds. We will make any refunds due to you as soon as possible. If you are exercising your right to change your mind, we will issue the refund within: (a) 14 days after the day we receive the goods back from you; (b) if you are exercising your right to change your mind under clause 5 of this Part B, (if earlier) 14 days after the day you provide evidence that you have returned the goods; or (c) if no goods have been supplied, 14 days after the day on which you told us that you want to cancel the contract.
8. RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU
8.1 We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these Terms, we are responsible for loss or damage you suffer that is a foreseeable result of us breaking the contract or our failure to use reasonable care and skill. We are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both us and you knew it might happen, for example, if you discussed it with us during the sales process.
8.2 We are not liable for business losses. We only supply the goods to you under these Terms for domestic and private use. If you use the goods for any commercial, business or re-sale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
8.3 Your statutory rights. Nothing in these Terms seeks to or has the effect of excluding your statutory rights.
9. OTHER IMPORTANT TERMS CONTINUED
9.1 Which laws apply to the contract, and where you may take legal action. These Terms are governed by English and Welsh law and you can bring legal proceedings in respect of the goods in the English and Welsh courts. If you live in Scotland, you can bring legal proceedings in respect of the goods in either the Scottish, English or Welsh courts. If you live in Northern Ireland, you can bring legal proceedings in respect of the goods in either the Northern Irish, English or Welsh courts.
PART C - TERMS THAT APPLY ONLY TO TRADE CUSTOMERS
Please note, the Terms in this Part C only apply if you are a trade customer.
1. PRICE AND PAYMENT CONTINUED
1.1 Time for payment by you is of the essence. You must pay all amounts due under the contract in full and cleared funds without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
1.2 If you fail to make any payment by the due date for payment, in addition to any unpaid amount that should properly have been paid and our rights under clause 7 of this Part C, you will, at our option: (a) pay interest on that amount (accruing daily from the due date for payment until the date of actual payment, whether before or after judgment). Such interest shall be calculated at a rate of 4% per year above the Bank of England’s base rate which is current at the date the payment became overdue (or if the Bank of England’s base rate drops below zero, then at 4 per cent a year); or (b) pay interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended) from the due date for payment until payment is made in full, whether before or after any judgment, and, at all times, you must pay the interest together with the overdue amount.
2. DELIVERY AND COLLECTION GENERALLY CONTINUED
2.1 Any dates and times quoted for delivery or when the goods will be available for collection are approximate only, and time is not and will not be made of the essence by notice. We will not be liable to you for failure to deliver on any date or time. Without limiting the generality of the foregoing, we will under no circumstances be liable to you, whether in contract, tort (including negligence) or otherwise, for any loss or damage you incur whether direct or indirect (including any liability you incur with any third party) resulting from any delay in delivery of the goods, or failure to deliver the goods within a reasonable time.
2.2 We shall not be liable for shortages in the quantity of goods (even if caused by our negligence) unless written notice is given to us within three business days of the date of delivery and otherwise immediately where you are collecting the goods.
2.3 Our liability for non-delivery of goods or shortages in the quantity of any goods shall be limited to replacing any relevant goods within a reasonable time, or (at our option) issuing a credit note or refund at the pro-rata price against any invoice raised for such goods.
2.4 If three business days following the due date for delivery or collection of the goods, you have not taken delivery of or collected them, then: (a) we may store the goods until delivery or collection takes place and charge you for all related costs and expenses (including storage charges and insurance); and/or (b) we may resell or otherwise dispose of the goods without any obligation or liability to you. We shall deduct all costs and expenses referenced in this clause 2.4 of this Part C and account to you for any excess of the resale price over or invoice you for any shortfall of the resale price below the price paid by you for the goods.
2.5 In these Terms, Insolvency Event shall mean: (a) you suspend, or threaten to suspend payment of your debts, or are unable to pay your debts as they fall due or admit inability to pay your debts, or (being a company or limited liability partnership) are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) are deemed either unable to pay your debts or as have no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) have any partner to whom any of the foregoing apply; (b) you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors; (c) being a company: (i) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up, other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or your solvent reconstruction; (ii) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over you; or (iii) the holder of a qualifying floating charge over your assets has become entitled to appoint or has appointed an administrative receiver; (d) a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets; (e) a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 days; (f) any event occurs, or proceeding is taken, with respect to you in any jurisdiction to which you are subject that has an effect equivalent or similar to an Insolvency Event; (g) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or (h) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the contract has been placed in jeopardy.
2.6 Until title to the goods has passed to you, you must: (a) hold the goods as bailee for us; (b) store the goods separately from all other goods held by you so that they remain readily identifiable as our property; (c) not remove, deface or obscure any identifying mark or packaging on or relating to the goods; (d) maintain the goods in the condition in which they were delivered/collected and keep them insured against all risks for their full price from the date of delivery/collection; (e) notify us immediately if you become subject to an Insolvency Event; and (f) inform us of the location of the goods (or such other information relating to the goods as we may require) upon request from time to time.
2.7 If before title to the goods passes to you, you inform us, or we reasonably believe, that you have or are likely to become subject to an Insolvency Event, then, without limiting any other right or remedy that we may have, we may at any time: (a) require you to deliver up (at your expense) all goods in your possession which have not been resold, or irrevocably incorporated into another product; and/or (b) enter any of your premises (or of any third party) where the goods are stored, with or without vehicles, to inspect and recover them. For these purposes, you grant us an irrevocable licence to enter such premises for such purposes.
3. QUALITY
3.1 We warrant that (subject to the other provisions of this clause 3 of this Part C) upon delivery or collection (as applicable) the goods shall conform in all material respects with their description and any applicable specification for the goods that is agreed between us in writing (the Specification), and shall be free from material defects in design, material and workmanship.
3.2 Subject to clause 3.3 of this Part C if: (a) you give notice in writing to us of any defect within three business days of discovering that some or all of the goods do not comply with the warranty set out in clause 3.1 of this Part C (and in respect of defects which are obvious upon a reasonable inspection at the time of delivery or collection, you advise us, where you are collecting the goods, immediately on collection or, where the goods are being delivered to you, by telephone immediately and give notice in writing to us within three business days of delivery); and (b) we are then given a reasonable opportunity to examine those goods before they are used, further damaged or otherwise interfered with, and (if asked to do so by them) you return them to us or other location as specified by us (at your cost), or allow us to collect the goods concerned, then we shall, as your sole and exclusive remedy and at our option, repair or replace the defective goods, or refund the price of the defective goods in full. These Terms shall apply to any repaired or replacement goods supplied by us.
3.3 We shall not be liable for goods' failure to comply with the warranty set out in clause 3.1 of this Part C in any of the following events: (a) if you make any further use of such goods after giving notice in accordance with clause 3.2 of this Part C; (b) if the defect arose because you failed to follow our instructions as to the appropriate storage, movement, commissioning, installation, use and maintenance of the goods or (if there are none) good trade practice regarding the same; (c) if the defect arose as a result of us following any drawing, design or Specification supplied by you; (d) if you alter or repair the goods without our written consent beforehand; (e) if the defect arose because of fair wear and tear, wilful damage or negligence (other than by us) or acts or omissions by you, your employees, agents or sub-contractors; or (f) if the goods differ from their description or any Specification because of changes made to ensure they comply with applicable laws or regulatory requirements.
3.4 Except as provided in this clause 3 of this Part C, we give no warranties and makes no representations in relation to the goods and shall have no liability to you in respect of the goods' failure to comply with the warranty set out in clause 3.1 of this Part C, and all warranties and conditions, whether express or implied by statute, common law or otherwise are excluded to the fullest extent permitted by law.
3.5 We will not be responsible for either the cost of removing the goods from any location where they are installed or fixed (or making good the location after removal) or for the cost of installing or fixing any repaired or replacement goods supplied.
4. LIMITATION OF LIABILITY
4.1 The extent of our liability under or in connection with the contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 4 of this Part C.
4.2 Nothing in these Terms shall limit or exclude our liability for: (a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; or (c) any other losses which cannot be excluded or limited by applicable law.
4.3 Subject to clause 4.2 of this Part C: (a) we shall not be liable for any consequential, indirect or special losses; (b) we shall not be liable for any of the following (whether direct or indirect): loss of profit; loss of revenue; loss or damage to equipment; loss of use; loss of contract; loss of commercial opportunity; loss of savings, discount or rebate (whether actual or anticipated); harm to reputation or loss of goodwill; and/or wasted expenditure; and (c) our total liability to you shall in no circumstances exceed the price of the goods ordered under the contract.
4.4 This clause 4 of this Part C shall survive the expiry or termination of the Contract.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 The supply of goods by us shall not confer any right upon you to use any of our Intellectual Property Rights. Intellectual Property Rights means all: copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in software, rights in goodwill, rights in confidential information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case: whether registered or not; including any applications to protect or register such rights; including all renewals and extensions of such rights or applications; whether vested, contingent or future; and in whichever part of the world existing). At all times such Intellectual Property Rights shall remain our absolute property (or our suppliers or licensors).
5.2 To the extent that the goods are manufactured, altered, processed or produced to your design, Specification or measurements, you agree to fully indemnify us against all losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, expenses, demands and legal and other professional costs (calculated on a full indemnity basis) suffered or incurred by us in connection with: (a) any action, claim or demand made against us for actual or alleged infringement of any third party's Intellectual Property Rights or other rights arising out of or in connection with our use or possession of your design, Specification or measurements; and (b) any other action, claim or demand arising from any manufacture, alteration, processing, production or supply including, but not limited to any defects in the goods, arising out of or in connection with our use or possession of your design, Specification or measurements.
6. FORCE MAJEURE
6.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the contract that is caused by any event beyond our reasonable control (each a Force Majeure Event). If a Force Majeure Event takes place that affects the performance of our obligations under the contract: (a) we will contact you as soon as reasonably possible to notify you; and (b) our obligations under the contract will be suspended and the time for performance of our obligations will be extended for the duration of the Force Majeure Event. Where the Force Majeure Event affects our delivery of goods to you, we will arrange a new delivery date with you after the Force Majeure Event is over.
7. RIGHTS TO SUSPEND THE SUPPLY OF GOODS OR END THE CONTRACT CONTINUED
7.1 Subject to clause 3 of this Part C, you can only cancel a contract or return goods to us which you do not require our prior consent, which is at our sole discretion. Any such cancellation or returns allowed by us will be on such terms as we specify.
7.2 We may terminate the contract (whether in whole or part) or any other contract which we have with you at any time by giving you notice in writing if: (a) you commit a material breach of the contract, and such breach is not remediable; (b) you commit a material breach of the contract which is not remedied within 5 business days of receiving written notice of such breach; (c) if you fail to pay any amount due under the contract on the due date for payment; or (d) if you suffer an Insolvency Event.
7.3 If you become aware that any event has occurred, or circumstances exist, which may entitle us to terminate the contract under this clause 7 of this Part C, you shall immediately notify us in writing.
7.4 On termination of the contract for any reason, you must immediately pay us all outstanding unpaid invoices and interest. Termination of the contract, however arising, shall not affect our rights, remedies and liabilities that have accrued as at termination. Clauses which expressly or by implication survive termination of the contract shall continue in full force and effect.
7.5 Without limiting our other rights or remedies, we may suspend supplies of goods under the contract or any other contract which we have with you if we are otherwise permitted to terminate the contract under this clause 7 of this Part C.
8. HEALTH AND SAFETY
Certain goods supplied by us could, if incorrectly used, give rise to risks to health and safety. Information in respect of such goods is available from us or may be provided with the relevant goods. It is your responsibility to ensure compliance by your employees, agents, subcontractors, users and customers with any safety instructions given by us in relation to those goods and to take other steps or precautions, having regard to the nature of the goods, as necessary to preserve the health and safety of any person handling, using or disposing of them.
9. OTHER IMPORTANT TERMS CONTINUED
9.1 The contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales. Each of us irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the contract, its subject matter or formation (including non-contractual disputes or claims).