Terms and Conditions

Interpretation
1. In these conditions:
  Buyer: means the person, firm or company who purchases the Goods from the Company.
  Company: means Simon Elvin Limited (registered number 1325617) which has its registered office at 1 City Square, Leeds LS1 2AL.
  Contract: means any contract between the Company and the Buyer for the sale and purchase of Goods.
  Goods: means any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part of them).
2. In these conditions: a reference to a statute shall be construed as a reference to it as amended, reenacted or extended at the relevant time; any phrase introduced by the terms "including" or "include" shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and condition headings do not affect the interpretation of these conditions.
Application of terms
1. Subject to any variation under condition 2.2 the Contract shall be made on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2. No variation to these conditions shall be effective unless expressly agreed in writing and signed by an authorised representative of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company's liability for fraudulent misrepresentation. 2.3 The Company shall be entitled, without liability on its part, to correct any errors or omissions in any sales literature, price list, invoice or other document.
Orders
1. Each order shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions. A Contract will only be made when the Buyer’s order is accepted by an authorised representative of the Company or, if sooner, when the Company delivers the Goods.
2. The Company reserves the right to reject any order from the Buyer without giving a reason.
3. The Company does not accept any responsibility for errors or omissions resulting from verbal or telephoned orders or order variations unless the order or the variation has been confirmed in writing by the Buyer.
4. If the Company, acting reasonably, is dissatisfied with the Buyer’s financial position or considers that fulfilling the Buyer’s order could damage the Company’s business or reputation in some way, the Buyer may cancel the Contract in whole or in part.
5. The Contract is subject to availability of the Goods ordered. Where any Goods are unavailable the Company will advise the Buyer as soon as reasonably possible and may treat the Contract as cancelled in respect of the unavailable Goods and neither party shall have any further liability for the same.
6. Part cancellation of the Contract by the Buyer under condition 3.4 or 3.5 shall not affect either party’s rights or obligations in respect of the non-cancelled part.
7. The Buyer may not cancel the Contract nor any part of it except: with the written agreement of the Company; or under condition 5.3 or condition 14.1.
Specification
1. All samples, drawings, specifications or particulars supplied by the Company or contained in the Company’s sales literature are intended merely to give an approximate idea of the Goods described in them and shall not form part of the Contract.
2. The Company reserves the right at any time to make changes to the specification of the Goods which do not materially affect their quality or performance.
Delivery
1. Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Buyer’s central warehouse or, if the Buyer does not have a central warehouse, at the Buyer’s main place of business.
2. Each date specified by the Company for delivery of the Goods is an estimate only and time for delivery shall not be of the essence.
3. Subject to condition 11.2, the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 8 weeks.
4. If the Buyer fails unreasonably to accept delivery of any Goods when they are ready for delivery then without limiting the Company’s other remedies: all risk in the Goods shall pass to the Buyer; the Goods shall be deemed to have been delivered; and the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including storage and additional delivery costs).
5. The Company may deliver the Goods by separate installments each of which shall be a separate Contract and no cancellation or termination of any one Contract or installment shall entitle the Buyer to repudiate or cancel any other Contract or installment.
Non-delivery
1. The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive proof to the contrary.
2. The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company within 14 days after the date of the relevant invoice or delivery note (whichever is earlier) specifying the Goods not delivered.
3. If the Buyer so notifies the Company and demonstrates to the Company’s reasonable satisfaction that some Goods were not delivered, the Company’s shall, at its option, supply such Goods within a reasonable time or issue a pro rata credit note based on the Contract price against any invoice raised for such Goods and this shall be the Buyer’s sole remedy for such non-delivery.
Risk and title
1. Subject to condition 5.4, the Goods are at the risk of the Buyer from the time of delivery.
2. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these conditions, title to the Goods shall not pass to the Buyer until the Company 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 the Company to the Buyer for which payment is then due.
3. Until such time as title to the Goods passes to the Buyer, the Buyer shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from other goods, properly stored, protected and insured and identified as the Company’s property but, except as prohibited under condition 7.7, the Buyer may resell the Goods in the ordinary course of its business for full market value.
4. Until such time as title to the Goods passes to the Buyer (and provided the Goods have not been resold), the Company may at any time require the Buyer to deliver up the Goods to the Company and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
5. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company.
6. On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 7 shall remain in full force and effect.
7. The Buyer may not sell or otherwise dispose of any Goods prior to the date appearing on the Company’s relevant invoice(s).
Price
1. The price of the Goods shall be as agreed between the parties failing which the price for the Goods shall be the trade price set out in the Company’s price list published on the date of the relevant order less any “standard” discount agreed in writing by the Company.
2. The Company may, at its sole discretion, by notice to the Buyer, increase the price at any time between the date on which the price was originally agreed and delivery of the Goods. If the Buyer does not agree the increased price it may, within 14 days after receipt of the Company’s notice and by written notice to the Company, cancel the order and terminate the Contract.
3. The price of the Goods shall be exclusive of any value added tax, import and export duties and all delivery charges, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
Payment
1. Unless otherwise agreed in writing by the Company and subject to condition 9.4, payment of the price for the Goods is due in pounds sterling on the last working day of the month following the month in which the Goods are delivered or deemed to be delivered.
2. Time for payment shall be of the essence and no payment shall be deemed to have been received until the Company has received cleared funds.
3. Unless specified otherwise by the Company (e.g. where the price of the Goods is expressed by the Company as being net of discounts), provided that the price is paid in full on or before its due date and provided further that on the date of such payment no other sum owing by the Buyer to the Company is beyond its due date for payment, the Company shall allow a prompt payment discount equal to 5% of the net invoice price of the Goods (excluding VAT and delivery charges).
4. All sums payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
5. The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
6. If the Buyer fails to pay the Company any sum due under the Contract, the Buyer shall be liable to pay the Company interest on such sum from the due date at the annual rate of 5% (five percent) above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment.
Quality
1. The Company warrants (subject to the other provisions of these conditions) that upon delivery the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
2. The Buyer shall inspect the Goods on delivery. If the Buyer considers any Goods to be defective or damaged the Buyer shall notify the Company in writing within 5 (five) days from the date of delivery. If the Buyer does not so notify the Company the Buyer shall not be entitled to reject the Goods, the Company shall have no liability for any such defect or damage and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
3. Where the Buyer notifies the Company (in accordance with condition 10.2) of a valid claim that Goods are defective or damaged, the Company may replace the relevant Goods free of charge or, at the Company’s sole discretion, issue the Buyer a pro rata credit note based on the Contract price against any invoice raised for such Goods, and the Company shall have no further liability to the Buyer in respect of such defect or damage.
4. The Company shall have no liability under any warranty, condition or guarantee if the total price for the Goods has not been paid by the due date for payment.
5. Subject as expressly provided in these conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
Limitation of liability
1. Subject to condition 5, condition 6 and condition 10, the following provisions set out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of: any breach of the Contract; any use made or resale by the Buyer of any Goods; and any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
2. Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or for fraud or fraudulent misrepresentation or for any other matter which it would be illegal for the Company to exclude or limit or attempt to exclude or limit its liability.
3. Subject to condition 11.2: the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
Insolvency of the Buyer
1. This condition 12 applies if: the Buyer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or a moratorium comes into force in respect of the Buyer (within the meaning of the Insolvency Act 1986); or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or the Buyer ceases, or threatens to cease, to carry on business; or the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
2. If this condition applies then, without limiting any other right or remedy available to the Company, the Company may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
Assignment
1. The Company may assign the Contract or any part of it to any person, firm or company. The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
Force majeure
1. The Company shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control provided that, if the event in question continues for a continuous period in excess of 8 weeks, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
General
1. Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
2. If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly invalid or unenforceable it shall to the extent of such invalidity, or unenforceability be deemed severed and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
3. No failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall be construed as a waiver of any of its rights under the Contract nor shall any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer be deemed a waiver of any subsequent breach or default.
4. A notice required or permitted to be given by either party to the other under these conditions shall be in writing (which includes fax) 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.
5. The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
6. The Contract shall be governed by English law and the Buyer submits to the non-exclusive jurisdiction of the English courts.