THE GARLAND COMPANY UK LIMITED
Registered in England and Wales with number 4339745
In these terms and conditions, the contract under which Garland agrees to supply goods to PURCHASER on these terms and conditions is referred to as “this contract”
Any order placed with The Garland Company UK Limited (“Garland”) shall be subject to the terms and conditions set forth herein, and acceptance of any such order by Garland shall be conditional on PURCHASER’s assent to these terms and conditions, which assent shall be deemed given unless PURCHASER shall expressly notify Garland to the contrary before receipt of an acknowledgement of confirmation of an order and in all events prior to any delivery or other performance of such order. The terms and conditions set forth herein shall supersede all prior oral or written statements of any kind made by the parties or their representatives. Additional or inconsistent terms on PURCHASER’S printed forms, including without limitation any purchase or confirmation order, and any terms or customs of the trade inconsistent with the terms and conditions set forth herein, shall not be binding on Garland or PURCHASER unless expressly agreed to in writing, signed by both Garland and the PURCHASER.
2.1 The price of the goods supplied under this contract shall be Garland’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in Garland’s published price list current at the date of acceptance of PURCHASER’S order. All prices quoted by Garland are valid for 30 days only or until earlier acceptance by Garland of PURCHASER’S order, after which time they may be altered by Garland without giving notice to PURCHASER.
2.2 Garland reserves the right, by giving notice to PURCHASER at any time before delivery, to increase the price of goods supplied under this contract to reflect any change in delivery dates, quantities or specifications for the goods which is requested by PURCHASER, or any delay caused by any instructions of PURCHASER or failure of PURCHASER to give Garland adequate information or instructions.
2.3 Except as otherwise stated under the term of any quotation, and unless otherwise agreed in writing between Garland and PURCHASER, all prices are given by Garland on an ex works basis, and where Garland agrees to deliver goods otherwise than at Garland’s premises, PURCHASER shall be liable to pay Garland’s charges for transport, packaging and insurance.
2.4 The price for goods supplied under this contract is exclusive of any applicable Value Added Tax, which PURCHASER shall be additionally liable to pay to Garland.
3 Technical Advice and Representations
3.1 Any technical advice or recommendations made to PURCHASER or its representatives by Garland or any representatives concerning any use or application of any goods supplied under this contract which is not confirmed in writing by Garland is followed or acted upon entirely at PURCHASER’s own risk and accordingly Garland shall not be liable for any such advice or recommendation which is not confirmed in writing.
3.2 No agent, employee or representative of Garland has any authority to make any representations concerning the goods supplied under this contract unless confirmed by Garland in writing. In entering into the contract, PURCHASER acknowledges that it does not rely on, and waives any claim for breach of, any such representations, which are not so confirmed.
4 Terms of Payment
4.1 PURCHASER shall pay the price of the goods supplied under this contract within 30 days of the date of Garland’s invoice, notwithstanding that delivery may not have taken place and the property in the goods has not passed to PURCHASER. The time for payment of the price shall be of the essence of this contract. Receipts for payment will be issued only upon request.
4.2 Credit card payments incur a surcharge of 2%
4.3 If PURCHASER fails to make any payment on the due date then, without prejudice to any right or remedy available to Garland, Garland shall be entitled to:
4.3.1 Cancel the contract or suspend any further deliveries to PURCHASER;
4.3.2 Appropriate any payment made by PURCHASER to such of the goods (or the goods supplied under any other contract between PURCHASER and Garland) as Garland may think fit (notwithstanding any purported appropriation by PURCHASER);
and 4.3.3 Charge PURCHASER interest, both before and after judgment (on the amount unpaid) at the rate of 4% above the Barclays Bank base rate from time to time, until payment in full is made such interest to be payable quarterly with effect from the day which is 30 days after the date of Garland’s invoice and to be compounded with the debt owing from PURCHASER if not paid.
5.1 Delivery of the goods supplied under this contract shall be made by Garland consigning the goods to a carrier at Garland’s premises.
5.2 Any dates quoted for delivery of the goods supplied under this contract are approximate only and Garland shall not be liable for any delay in delivery of the goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by Garland in writing in advance of the quoted delivery date.
5.3 Where the goods to be supplied under this contract are to be delivered in installments, each delivery shall constitute a separate contract and failure by Garland to deliver any one or more of the installments in accordance with these terms and conditions or any claim by PURCHASER in respect of any one or more installments shall not entitle PURCHASER to treat the contract as a whole as repudiated.
5.4 Garland shall not be liable for any delay in delivery due to causes beyond its reasonable control (including but not limited to any delays relating to hauliers and other companies employed by Garland to transport goods and/or Garland being unable to adequately resource delivery by such companies). In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay.
6 Risk and Property
6.1 Risk of damage to or loss of the goods supplied under this contract shall pass to PURCHASER at the time when Garland consigns the goods to a carrier at Garland’s premises.
6.2 Notwithstanding delivery and the passing of risk in the goods, or any other provision of these terms and conditions, the property of the goods supplied under this contract shall not pass to PURCHASER until Garland has received in cash or cleared funds payment in full of the price of the goods and all other goods agreed to be sold by Garland to PURCHASER for which payment is then due.
7 Cancellation by Purchaser
Once accepted by Garland, an order is not subject to cancellation except where PURCHASER gives reasonable written notice to Garland to stop work, and PURCHASER, along with said notice, agrees to pay Garland for all work in progress and any materials or supplies used (or for which commitments have been made by Garland in connection with the order), plus all costs and expenses otherwise incurred by Garland, as computed in accordance with Garland’s general accounting practices.
8 Acceptance of Goods
PURCHASER shall assume full responsibility for the inspection of all shipments when received. PURCHASER shall notify Garland in writing if any items delivered hereunder do not conform to specifications. Such notice shall be provided as soon as possible after delivery but in no event later than fifteen (15) days after such delivery. If requested by Garland, PURCHASER shall return such nonconforming items to Garland within (15) days of such request. If Garland does not receive notice of any nonconforming items from PURCHASER as aforesaid, the shipment shall be deemed to have been accepted and approved by PURCHASER without qualification. Upon verification by Garland of non-conformance to specifications of any timely returned items, Garland shall replace same, or at Garland’s sole option, refund the purchase price of such nonconforming items.
9 Returned Goods
The return of products will incur a restocking fee of 15% plus all relevant delivery charges. Products must be in their original, resalable condition and a return request form must be completed and emailed to customer services prior to goods being returned in order for a credit note to be issued.
10 Warranties and Liabilities
10.1 Where Garland gives a warranty in the form of any of Garland’s standard form warranties to PURCHASER’s customer, Garland gives no warranty to PURCHASER other than a warranty in the same terms and subject to the same conditions and restrictions as the warranty given to PURCHASER’s customer.
10.2 Where Garland does not give a warranty to PURCHASER’s customer in the form of any of Garland’s standard form warranties, Garland warrants to PURCHASER that the goods supplied under this contract will correspond with their specification at the time of delivery and will be reasonably free from defects in material and workmanship.
10.3 The warranty given in clause 9.2 is given by Garland subject to the following conditions:
10.3.1 Garland shall be under no liability in respect of any defect in the goods arising from any drawing, design or specification supplied by PURCHASER;
10.3.2 Garland 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 Garland’s instructions (whether oral or in writing), misuse, alteration or repair of the goods without Garland’s approval;
10.3.3 The above warranty does not extend to parts, materials or equipment not manufactured by Garland or its parent company, the Garland Industries of Cleveland, Ohio, in respect of which PURCHASER shall only be entitled to the benefit of such warranty or guarantee as is given by the manufacturer to Garland.
10.4 Garland shall be under no liability under the warranty in 9.2 or under any warranty in the form of Garland’s standard form warranties given to PURCHASER’S customer if the total price for the goods supplied under this contract has not been paid by the due date for payment.
10.5 Subject as expressly provided in these terms and conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.6 Where any valid claim in respect of any of the goods supplied under this contract which is based on any defect in the quality or condition of the goods or their failure to meet specification is notified to Garland, Garland shall be entitled to replace the goods (or the part of the goods in question) free of charge or, at Garland’s sole discretion, refund to PURCHASER the price of the goods (or a proportionate part of the price) but Garland shall have no further liability to PURCHASER.
10.7 Except in respect of death or personal injury caused by Garland’s negligence, Garland shall not be liable to PURCHASER 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 this contact, for any consequential loss or damage (whether for loss of profit or otherwise, costs, expenses or other claims for consequential compensation whatsoever) and whether caused by the negligence of Garland, its employees or agents or otherwise, which arise out of or in connection with the supply of the goods supplied under this contract or their use or resale by PURCHASER, except as expressly provided in these terms and conditions.
11 Force Majeure
Garland shall not be liable to PURCHASER or be deemed to be in breach of this contract by reason of any delay in performing, or any failure to perform, any of Garland’s obligations in relation to the goods to be supplied under this contract if the delay or failure was due to any cause beyond Garland’s reasonable control. In the event of any delay and delivery due to any such cause, the date for delivery shall be extended for a period equal to the time lost by reason of delay attributable to such cause.
PURCHASER shall indemnify, hold harmless and release Garland from and against any loss, liability, claims suits and costs: (i) to the extent caused by any non-performance or non-fulfilment of any agreement or undertaking on the part of PURCHASER hereunder; or (ii) caused by, arising out of or related to the design of any goods supplied hereunder (including, without limitation, liability for patent and trademark infringement), if such goods are made in compliance with PURCHASER’S design or specifications; or (iii) caused by any unlawful use by PURCHASER.
13 Insolvency of Purchaser
13.1 This clause applies if
13.1.1 Purchaser makes any voluntary arrangement with its creditors or becomes subject to an 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); or
13.1.2 An encumbrancer takes possession, or a receiver or an administrative receiver is appointed, of any of the property or assets of PURCHASER; or
13.1.3 PURCHASER ceases, or threatens to cease, to carry on business; or
13.1.4 Garland reasonably apprehends that any of the events mentioned above is about to occur in relation to PURCHASER and notifies PURCHASER accordingly.
13.2 If this clause applies then, without prejudice to any other right or remedy available to Garland, Garland shall be entitled to cancel the contract without any liability to PURCHASER and if goods have been delivered but not paid for, without prejudice to any other right of Garland under these terms and conditions, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
14.1 Garland is a member of the group of companies whose holding company is Garland Industries and accordingly Garland may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of Garland.
14.2 Any notice required or permitted to be given by either party to the other under these terms and conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
14.3 No waiver by Garland of any breach of this contract by PURCHASER shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.4 If any provision of these terms and 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 terms and conditions and the remainder of the provision in question shall not be affected thereby.
14.5 PURCHASER shall not be entitled to assign the benefit of this contract in whole or in part.
14.6 This contract shall be governed by and construed in accordance with English law and both Garland and PURCHASER submit to the non-exclusive jurisdiction of the English courts as regards any claim, dispute or matter arising out of or relating to the contract.