Terms of service
A Perry Ltd. General Terms & Conditions of Sale
1 Definitions and interpretation
1.1 In these Conditions the following definitions apply:
Business Day means a day other than a Saturday, Sunday or bank or public holiday
when banks generally are open for non-automated business ;
Conditions means the Supplier’s terms and conditions of sale set out in this
document;
Contract means the agreement between the Supplier and the Customer for the
sale and purchase of Goods incorporating these Conditions and the
Order;
Control means the beneficial ownership of more than 50% of the issued share
capital of a company or the legal power to direct or cause the direction
of the management of the company;
Customer means the person who purchases the Goods from the Supplier and
whose details are set out in the Order;
Delivery
Location
means the address for delivery of the Goods set out in the Order or
otherwise agreed with the Customer;
Force
Majeure
means an event or sequence of events beyond a party's reasonable
control (after exercise of reasonable care to put in place robust backup and disaster recovery arrangements) preventing or delaying it from
performing its obligations under the Contract including an act of God,
fire, flood, lightning, earthquake or other natural disaster; war, riot or
civil unrest; interruption or failure of supplies of power, fuel, water,
transport, equipment or telecommunications service; or material
required for performance of the Contract; strike, lockout or boycott or
other industrial action including strikes or other industrial disputes
involving the Supplier’s or its suppliers workforce, but excluding the
Customer’s inability to pay or circumstances resulting in the
Customer’s inability to pay;
Goods means the goods (or any part of them) set out in the Order and to be
supplied by the Supplier to the Customer;
Order means an order (or otherwise an offer to make a purchase) for the
Goods from the Supplier placed by the Customer by telephone or set
out in the Customer’s purchase order form or in the Customer’s
acceptance of the Supplier’s quotation;
Price has the meaning given in clause 5.1;
Specification means the description, any samples, or specification of the Goods set
out or referred to in the Order or otherwise agreed by the Customer
and the Supplier;
Supplier means A. Perry Ltd (company number 0363827) whose registered
office is at Doulton Road, Cradley Heath, West Midlands, B64 5QW;
VAT means value added tax under the Value Added Taxes Act 1994 or any
other similar sale or fiscal tax applying to the sale of the Goods;
Website; means the website (www.perrytade.co.uk) that is operated by or on
behalf of the Supplier.
1.2 In these Conditions, unless the context requires otherwise:
1.2.1 any clause or other headings in these Conditions is included for
convenience only and shall have no effect on the interpretation of
the Conditions;
1.2.2 a reference to a ‘party’ includes that party’s personal
representatives, successors and permitted assigns;
1.2.3 a reference to a ‘person’ includes a natural person, corporate or
unincorporated body (in each case whether or not having separate
legal personality) and that person’s personal representatives,
successors and permitted assigns;
1.2.4 a reference to a ’company’ includes any company, corporation or
other body corporate, wherever and however incorporated or
established;
1.2.5 a reference to a gender includes each other gender;
1.2.6 words in the singular include the plural and vice versa;
1.2.7 any words that follow 'include', 'includes', 'including', ‘in particular’
or any similar words and expressions shall be construed as
illustrative only and shall not limit the sense of any word, phrase,
term, definition or description preceding those words;
1.2.8 a reference to ‘writing’ or ‘written’ includes any method of
reproducing words in a legible and non-transitory form;
1.2.9 a reference to legislation is a reference to that legislation as
amended, extended, re-enacted or consolidated from time to time
except to the extent that any such amendment, extension or reenactment would increase or alter the liability of a party under the
Contract; and
1.2.10 a reference to legislation includes all subordinate legislation made
under that legislation.
2 Application of these conditions
2.1 These Conditions apply to and form part of the Contract between the Supplier
and the Customer to the exclusion of any other terms that the Customer seeks
to impose or incorporate, or which are implied by trade, custom, practice or
course of dealing. They supersede any previously issued terms and conditions
of purchase or supply .
2.2 No terms or conditions endorsed on, delivered with, or contained in the
Customer's purchase conditions, order, confirmation of order, specification or
other document shall form part of the Contract except to the extent that the
Supplier otherwise agrees in writing.
2.3 No variation of these Conditions or to an Order or to the Contract shall be
binding unless expressly agreed in writing and executed by a duly authorised
signatory on behalf of the Supplier.
3 Basis of Contract
3.1 A quotation for the Goods given by the Supplier shall not constitute an offer to
supply Goods. A quotation shall only be valid for a period of 5 Business Days
from its date of issue.
3.2 Each Order by the Customer to the Suppliershall be an offer to purchase Goods
subject to these Conditions. The Customer is responsible for ensuring that the
terms of the Order and any applicable Specification are complete and accurate.
3.3 The Supplier may accept or reject an Order at its discretion. If the Supplier is
unable to accept an Order, it shall notify the Customer as soon as reasonably
practicable.
3.4 The Order shall only be deemed to be accepted when the Supplier issues a
written acceptance of the Order or otherwise confirms in writing that the Order
has been placed and processed, at which point the Contract shall come into
existence.
3.5 Any samples, drawings, descriptive matter or advertising produced by the
Supplier and any descriptions or illustrations contained in the Supplier’s
catalogues or brochures are illustrative only and do not form part of the
Contract.
4 Goods
4.1 The Goods are described in the Supplier’s catalogue or brochure as modified by
any applicable Specification.
4.2 The Supplier reserves the right to amend the specification of the Goods if
required by any applicable statutory or regulatory requirements.
5 Price and Payment
5.1 The price for the Goods shall be the price advised by the Supplier (including on
its Website) before the Order is made or otherwise set out in the Order. The
Supplier will confirm the price of the Goods in writing before the Order is made.
5.2 The price of the Goods is exclusive of:
5.2.1 delivery charges (unless expressly stated otherwise) ; and
5.2.2 VAT (or equivalent sales tax).
5.3 Delivery charges vary depending on the Goods ordered, the Delivery Location
and the delivery method selected. Wherever possible the Customer will be
notified of the delivery charges applicable to the Goods being delivered at the
time the Order is made which the Customer will pay on receipt of an invoice.
5.4 The Customer shall pay any applicable VAT (or equivalent sales tax) at the
prevailing rate to the Supplier on receipt of a valid VAT invoice.
5.5 The Supplier may increase the price of the Goods at any time by giving the
Customer not less than 5 Business Days’ notice in writing before delivery to
reflect any increase in the cost of the Goods that is due to:
5.5.1 any factor beyond the Supplier’s control (including foreign
exchange fluctuations, increases in taxes and duties, and increases
in labour, materials and other manufacturing costs);
5.5.2 any request by the Customer to change the delivery date(s),
quantities or types of Goods ordered, or the Specification;
5.5.3 any delay caused by any instructions of the Customer or failure of
the Customer to give the Supplier adequate or accurate
information or instructions.
5.6 The Supplier may invoice the Customer for the Goods at any time on or after
Delivery.
5.7 The Customer shall pay all invoices to the bank account nominated by the
Supplier in full without deduction or set-off, in full and cleared funds by the end
of the month following the month the invoice was dated.
5.8 Time of payment is of the essence. If the Customer fails to make any payment
due to the Supplier under the Contract by the due date for payment the Supplier
may, without limiting its other rights, charge interest on such sums at 4% per
annum above the base rate of Barclays Bank PLC from time to time. Such
interest shall accrue on a daily basis and apply from the due date for payment
until actual payment in full, whether before or after judgment.
6 Credit Limit
The Supplier may set and vary credit limits from time to time and withhold all
further supplies if the Customer exceeds such credit limit.
7 Delivery
7.1 The Supplier shall either:
7.1.1 deliver the Good to the location set out in the Order or such other
location as the parties may agree: or
7.1.2 if so specified in the Order, make the Goods available for collection
by the Customer at the Supplier's premises set out in the Order in
which case the Customer shall collect the Goods within the period
specified in the Order.
7.2 The Goods shall be deemed delivered:
7.2.1 if delivered by the Supplier under clause 7.1.1, on completion of
unloading of the Goods at the Delivery Location; or
7.2.2 if collected by the Customer under clause 7.1.2 , when the Supplier
makes the Goods available for collection at the Supplier's premises.
7.3 The Customer shall not be entitled to reject any delivery of Goods on the basis
that an incorrect volume of Goods has been supplied provided the volumes are
within the tolerances (if any) set out in the Order.
7.4 The Goods may be delivered by instalments. Any delay in delivery or defect in
an instalment shall not entitle the Customer to cancel any other instalment.
7.5 Delivery of the Goods shall be accompanied by a delivery note stating:
7.5.1 the date of the Order, the Customer account number and Order
reference;
A Perry Ltd. General Terms & Conditions of Sale
7.5.2 the product numbers or code, type and quantity of Goods in the
consignment; and
7.5.3 if the Goods are being delivered by instalments the outstanding
balance of Goods remaining to be delivered.
7.6 Time of delivery is not of the essence. The Supplier shall use its reasonable
endeavours to meet delivery dates but such dates are approximate only.
7.7 If the Supplier requires the Customer to return any packaging materials to the
Supplier, that fact will be stated on the delivery note. The Customer shall make
any such packaging materials available for collection at such times as the
Supplier shall reasonably request. Returns of packaging materials shall be at the
Supplier’s expense
7.8 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs
and expenses incurred by the Customer in obtaining replacement goods of
similar description and quality in the cheapest market available, less the price of
the Goods. The Supplier shall not be liable for any delay in or failure of delivery
caused by:
7.8.1 the Customer's failure to: (i) make the Delivery Location available,
(ii) prepare the Delivery Location as required for delivery, or (iii)
provide the Supplier with adequate instructions for delivery or any
other instructions that are relevant to the supply of the Goods;
7.8.2 the Customer's failure to collect the Goods from the Supplier's
premises; or
7.8.3 Force Majeure.
7.9 If the Customer fails to take or accept delivery of the Goods within three
Business Days of the Supplier notifying the Customer that the Goods are ready:
7.9.1 delivery of the Goods shall be deemed to have completed at
9.00am on the third Business Day after the day on which the
Supplier notified the Customer the Goods were ready; and
7.9.2 the Suppliershall store and insure the Goods pending delivery and
charge the Customer for all reasonable related costs and expenses
(including storage and insurance) relating thereto.
7.10 If five Business Days following the due date for delivery or collection of the
Goods, the Customer has not taken delivery of or collected them, the Supplier
may resell or otherwise dispose of the Goods. The Supplier shall:
7.10.1 charge the Customer reasonable storage charges and costs of
resale;
7.10.2 charge the Customer for its reasonable costs of disposing of or
recycling any Goods which the Supplier is not able to re-sell; and
7.10.3 charge the Customer for any shortfall of the resale price below the
Price payable by the Customer for the Goods
and all such charges are payable by the Customer immediately on receipt of the
Supplier’s invoice.
8 Title and Risk
8.1 Risk in the Goods shall pass to the Customer on Delivery
8.2 Title to the Goods shall pass to the Customer once the Supplier has received
payment in full and cleared funds for the Goods and any other goods that the
Supplier has supplied to the Customer in respect of which payment has become
due in which case title to the Goods shall pass at the time of payment of all such
sums.
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
8.3.1 hold the Goods as bailee for the Supplier;
8.3.2 store the Goods separately from all other goods or material in the
Customer's possession so that they remain readily identifiable as
the Supplier’s property;
8.3.3 take all reasonable care of the Goods and not remove, deface or
obscure any identifying mark or packaging on or relating to the
Goods;
8.3.4 maintain the Goods in satisfactory condition and keep them
insured against all risks for an amount at least equal to their Price;
8.3.5 inform the Supplier immediately if it becomes subject to any of the
events or circumstances set out in clauses 13.1 or 13.2 ; and
8.3.6 on reasonable notice permit the Supplier to inspect the Goods
during the Customer’s normal business hours and provide the
Supplier with such information concerning the Goods as the
Supplier may request from time to time.
8.4 Notwithstanding clause 8.3, the Customer may use or resell the Goods in the
ordinary course of its business until such time as it becomes aware or ought
reasonably to have become aware that an event specified in clauses 13.1 or 13.2
has occurred or is likely to occur.
8.5 If the Customer resells the Goods in accordance with clause 8.4, title to the
Goods shall pass to the Customer immediately prior to the resale.
8.6 If, at any time before title to the Goods has passed to the Customer, the
Customer informs the Supplier, or the Supplier reasonably believes, that the
Customer has or is likely to become subject to any of the events specified in
clauses 13.1 or 13.2, the Supplier may at any time (and without limiting any
other right or remedy which the Supplier may have):
8.6.1 require the Customer at the Customer's expense to deliver up to the
Supplier all Goods in its possession that have not been resold or
irrevocably incorporated into another product; and
8.6.2 if the Customer fails to do so promptly, enter any premises where
the Goods are stored and repossess them.
9 Warranty
9.1 The Supplier warrants that the Goods shall, for a period of three months from
Delivery (the Warranty Period):
9.1.1 conform in all material respects with their description and any
applicable Specification;
9.1.2 be free from material defects in design, material and workmanship;
and
9.1.3 be of satisfactory quality within the meaning of the Sale of Goods
Act 1979.
9.2 The Customer warrants that it has provided the Supplier with all relevant, full
and accurate information as to the Customer’s business and needs.
9.3 The Suppliershall, at its option, repair, replace, or refund the Price of, any Goods
that do not comply with clause 9.1, provided that the Customer:
9.3.1 serves a written notice on Supplier:
(a) during the Warranty Period in the case of defects
discoverable by a physical inspection; or
(b) in the case of latent defects, within one month from
the date on which Customer became aware (or should
reasonably have become aware) of the defect;
9.3.2 provides the Supplier with sufficient information as to the nature
and extent of the defects and the uses to which the Goods had been
put prior to the defect arising;
9.3.3 gives the Supplier a reasonable opportunity to examine the
defective Goods; and
9.3.4 returns the defective Goods to the Supplier at the Customer's
expense.
9.4 The provisions of these Conditions, including the warranties set out in clause
9.1, shall apply to any Goods that are repaired or replaced with effect from
Delivery of the repaired or replaced Goods.
9.5 The Suppliershall not be liable for any failure of the Goodsto comply with clause
9.1:
9.5.1 where such failure arises by reason of wear and tear, wilful damage,
negligence, or could be expected to arise in the normal course of
use of the Goods;
9.5.2 to the extent caused by the Customer's failure to comply with the
Supplier's instructions in relation to the Goods, including any
instructions on installation, operation, storage or maintenance;
9.5.3 to the extent caused by the Supplier following any specification or
requirement of the Customer in relation to the Goods;
9.5.4 where the Customer modifies, alters or repairs any Goods without
the Supplier's prior written consent or, having received such
consent, not in accordance with the Supplier’s instructions;
9.5.5 where the Customer uses any of the Goods after notifying the
Supplierthat they do not comply with clause 9.1; or the Goods differ
from their description or the Specification as a result of changes
made to ensure they comply with applicable statutory or regulatory
requirements
9.6 Except as set out in this clause 9:
9.6.1 the Supplier gives no warranties and makes no representations in
relation to the Goods; and
9.6.2 shall have no liability for their failure to comply with the warranty
in clause 9.1,
and all warranties and conditions (including the conditions implied
by ss 13–15 of the Sale of Goods Act 1979), whether express or
implied by statute, common law or otherwise are excluded to the
extent permitted by law.
10 Indemnity
10.1 The Customer shall indemnify the Supplier from and against any losses,
damages, liability, costs (including legal fees) and expenses which the Supplier
may suffer or incur directly or indirectly from the Customer’s breach of any of its
obligations under the Contract.
11 Limitation of liability
11.1 The extent of the parties’ 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 11.
11.2 Subject to clauses 11.5 and 11.6, the Supplier’s liability shall be limited at is
option either to supply replacement Goods (which will be supplied subject to
these terms) or to refund the Price paid by the Customer for the Goods.
11.3 Subject to clauses 11.5 and 11.6, the Supplier shall not be liable for
consequential, indirect or special losses.
11.4 Subject to clauses 11.5 and 11.6, the Suppliershall not be liable (whether directly
or indirectly) for any loss of profit, loss of use, loss of production, loss of
opportunity, loss of savings, discount or rebate (whether actual or anticipated,
harm to reputation or loss of goodwill. (whether actual or anticipated).
11.5 The limitations of liability set out in clauses 11.2 to 11.4 shall not apply in respect
of any indemnities given by either party under the Contract.
11.6 Notwithstanding any other provision of the Contract, the liability of the parties
shall not be limited in any way in respect of the following:
11.6.1 death or personal injury caused by negligence;
11.6.2 fraud or fraudulent misrepresentation; or
11.6.3 any other losses which cannot be excluded or limited by applicable
law.
12 Force majeure
12.1 A party shall not be liable if delayed in or prevented from performing its
obligations due to Force Majeure, provided that it:
12.1.1 promptly notifies the other of the Force Majeure event and its
expected duration; and
A Perry Ltd. General Terms & Conditions of Sale
12.1.2 uses best endeavours to minimise the effects of that event.
12.2 If, due to Force Majeure, a party:
12.2.1 is or shall be unable to perform a material obligation; or
12.2.2 is delayed in or prevented from performing its obligations for a
continuous period exceeding 14 days or total of more than 30 days
in any consecutive period of 60 days;
the parties shall, within 30 days, renegotiate the Contract to
achieve, as nearly as possible, the original commercial intent.
13 Termination
13.1 Without limiting its other rights or remedies, the Supplier may terminate the
Contract with at any time by giving notice in writing to the Customer if the
Customer:
13.1.1 commits a material breach of the Contract and (if such breach is
remediable) fails to remedy that breach 14 days of receiving written
notice to do so;
13.1.2 suspends or ceases to carry on all or a significant part of its
business, or indicates in any way that it intends to do so;
13.1.3 is unable to pay its debts either within the meaning of section 123
of the Insolvency Act 1986 or if the Supplier reasonably believes
that to be the case;
13.1.4 becomes the subject of a company voluntary arrangement under
the Insolvency Act 1986;
13.1.5 has a receiver, manager, administrator or administrative receiver
appointed over all or any part of its undertaking, assets or income;
13.1.6 has a resolution passed for its winding up;
13.1.7 has a petition presented to any court for its winding up or an
application is made for an administration order, or any winding-up
or administration order is made against it;
13.1.8 is subject to any procedure for the taking control of its goods that
is not withdrawn or discharged within seven days of that procedure
being commenced;
13.1.9 has a freezing order made against it;
13.1.10 is subject to any recovery or attempted recovery of items supplied
to it by a supplier retaining title to those items;
13.1.11 is subject to any events or circumstances analogous to those in
clauses 13.1.2 to 13.1.10 in any jurisdiction;
13.1.12 takes any steps in anticipation of, or has no realistic prospect of
avoiding, any of the events or procedures described in clauses
13.1.2 to 13.1.11 including giving notice for the convening of any
meeting of creditors, issuing an application at court or filing any
notice at court, receiving any demand for repayment of lending
facilities, or passing any board resolution authorising any steps to
be taken to enter into an insolvency process.
13.2 Without limiting its other rights or remedies, the Supplier may terminate the
Contract with immediate effect by giving notice in writing to the Customer if:
13.2.1 the Customer fails to pay any amount due under the Contract on
the due date for payment; or
13.2.2 the Customer’s financial position deteriorates to such an extent
that in the Supplier’s opinion the Customer’s capability to
adequately fulfil its obligations under the Contract has been placed
in jeopardy.
13.3 Without limiting its other rights or remedies, the Supplier may suspend
provision of the Goods under the Contract or any other contract between the
Customer and the Supplier if the Customer becomes subject to any of the events
listed in clauses 13.1 to 13.2 or the Supplier reasonably believes that the
Customer is about to become subject to any of them, or if the Customer fails to
pay any amount due under this Contract on the due date for payment.
13.4 On termination of the Contract for any reason the Customer shall immediately
pay to the Supplier all of the Supplier’s outstanding unpaid invoices and any
interest due.
13.5 Termination of the Contract shall not affect any of the parties’ rights and
remedies that have accrued as at termination, including the right to claim
damages in respect of any breach of this Contract that existed at or before the
date of termination.
13.6 Any provision of the Contract that expressly or by implication is intended to
come into or continue in force on or after termination shall remain in full force
and effect
14 Notices
14.1 Any notice or other communication given by a party under or in connection
with the Contract shall be in writing and in English, addressed to the relevant
party at its registered office (if it is a company) or its principal place of business
(in any other case) or such other address as that party may have specified to the
other party in writing in accordance with this clause, and shall be delivered
personally, sent by pre-paid first class post or other next working day delivery
service, commercial courier, fax or email.
14.2 A notice or other communication shall be deemed to have been received: if
delivered personally, when left at the address referred to in clause 14.1; if sent
by pre-paid first class post or other next working day delivery service, at 9.00 am
on the second Business Day after posting; if delivered by commercial courier, on
the date and at the time that the courier’s delivery receipt is signed; or, if sent
by fax or email, one Business Day after transmission
14.3 This clause 14 does not apply to notices given in legal proceedings or
arbitration.
15 Cumulative remedies
The rights and remedies provided in the Contract for the Supplier only are
cumulative and not exclusive of any rights and remedies provided by law.
16 Time
Unless stated otherwise, time is of the essence of any date or period specified in
the Contract in relation to the Customer’s obligations only.
17 Further assurance
The Customer shall at the request of the Supplier, and at the Customer’s own
cost, do all acts and execute all documents which are necessary to give full effect
to the Contract.
18 Entire agreement
18.1 The parties agree that the Contract constitutes the entire agreement between
them and supersedes all previous agreements, promises, assurances,
warranties, representations, understandings and arrangements between them,
whether in writing or oral in respect of its subject matter.
18.2 Each party acknowledges that it has not entered into the Contract in reliance
on, and shall have no remedies in respect of, any statement, representation,
assurance or warranty that is not expressly set out in the Contract. No party shall
have any claim for innocent or negligent misrepresentation on the basis of any
statement in the Contract.
18.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.
19 Variation
No variation of the Contractshall be valid or effective unless it is in writing, refers
to the Contract and is duly signed or executed by, or on behalf of, the Supplier.
20 Assignment
20.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or
deal in any other manner with all or any of its rights or obligations under the
Contract.
20.2 The Customer may not assign, subcontract or encumber any right or obligation
under the Contract, in whole or in part, without the Supplier’s prior written
consent.
21 Set off
21.1 The Customer shall pay all sums that it owes to the Supplier under the Contract
without any set-off, counterclaim, deduction or withholding of any kind, save as
may be required by law.
22 Severance
22.1 If any provision of the Contract (or part of any provision) is or becomes illegal,
invalid or unenforceable, the legality, validity and enforceability of any other
provision of the Contract shall not be affected.
22.2 If any provision of the Contract (or part of any provision) is or becomes illegal,
invalid or unenforceable but would be legal, valid and enforceable if some part
of it was deleted or modified, the provision or part-provision in question shall
apply with such deletions or modifications as may be necessary to make the
provision legal, valid and enforceable. In the event of such deletion or
modification, the parties shall negotiate in good faith in order to agree the terms
of a mutually acceptable alternative provision.
23 Waiver
23.1 No failure, delay or omission by the Supplier in exercising any right, power or
remedy provided by law or under the Contract shall operate as a waiver of that
right, power or remedy, nor shall it preclude or restrict any future exercise of that
or any other right, power or remedy.
23.2 No single or partial exercise of any right, power or remedy provided by law or
under the Contract by the Supplier shall prevent any future exercise of it or the
exercise of any other right, power or remedy by the Supplier.
24 Compliance with law
The Customer shall comply with all laws, enactments, regulations, regulatory
policies, guidelines and industry codes applicable to it and shall maintain such
authorisations and all other approvals, permits and authorities as are required
from time to time to perform its obligations under or in connection with the
Contract.
25 Third party rights
A person who is not a party to the Contract shall not have any rights under the
Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of
the Contract.
26 Governing law
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.
27 Jurisdiction
The parties irrevocably agree that the courts of England and Wales shall have
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 claim