Conditions of Sale

1.
DEFINITIONS & INTERPRETATION
1.1
In these conditions, unless the context otherwise requires:-
Acceptance means acceptance (whether actual or deemed) of a Buyer’s order by the Vendor pursuant to condition 2.5;
Business Day means a day other than a Saturday or a Sunday;
Buyer means the person, firm or company who/which places a purchase order with the Vendor via the Website;
Contract means a contract between the Vendor and the Buyer in respect of the provision of Goods;
Contractual Terms means:-
(a)
the terms set out in the applicable Proposal;
(b)
any other terms which the Vendor publishes via the Website and which the Buyer accepts; and
(c)
save to the extent that they are inconsistent with the terms referred to in (a) and/or (b) above, the terms set out herein;
Delivery Address means the Vendor’s Site or such other address at which delivery of Goods is to take place pursuant to condition 4.1;
Delivery Date means the date of delivery (whether actual or, pursuant to condition 4.5.2, deemed) of the Goods by the Vendor to the Buyer;
Goods means goods (if any) to be supplied to the Buyer by the Vendor (including any part or parts of them);
Parties means the Buyer and the Vendor and Party means either one of them;
Price means the price of Goods (exclusive of all VAT, imposts, duties, levies and all costs/charges for packing, packaging, loading, unloading, shipping/carriage, insurance and delivery to the Delivery Address);
Proposal means a quotation/proposal issued by the Vendor in respect of its supply of Goods;
Proposal Date means the date of the Proposal;
VAT means Value Added Tax or, if applicable, its equivalent in another jurisdiction;
Vendor means the person, firm or company who/which receives a purchase order from the Buyer via the Website;
Vendor’s Site means such place of business as the Vendor, in its absolute discretion, determines and identifies in the Proposal as being applicable to the Contract in question;
Website means ValveConnect.com.
1.2
The headings in these conditions are for convenience only and shall not affect the interpretation or construction of these conditions.
1.3
The singular includes the plural and vice versa and any reference to one gender includes a reference  to all genders.
1.4
Save where expressly stated otherwise, words and expressions defined in the Companies Acts 1985 to 2006 shall bear the same meanings in each Contract.
1.5
Reference to any statute or statutory provision shall include a reference to any statute or statutory provision which amends, extends, consolidates or replaces the same (save to the extent that any amendment, extension, consolidation or replacement would impose more onerous obligations than otherwise exist at the date on which the relevant Contract is entered into) or which has been amended, extended, consolidated or replaced by the same and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute or statutory provision.
1.6
Any reference to anything being "in writing" or "written" shall be deemed to include an additional reference to electronic communication (whether by email or otherwise) and the Buyer and the Vendor agree that communication by electronic means (whether by email or otherwise) shall be valid for all purposes hereunder.
1.7
Condition 6.5 shall be deemed to include additional references to analogous proceedings in any jurisdiction.
2.
APPLICATION OF TERMS
2.1
Subject to any variation under condition 2.3, each Contract shall be solely on the Contractual Terms to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply (whether under any purchase order, confirmation of order, specification or otherwise)) and no variation to the Contractual Terms shall have effect unless expressly agreed in writing by the Vendor.
2,2
No terms or conditions endorsed on, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document shall form part of a Contract simply as a result of such document being referred to in a Contract.
2.3
The Buyer acknowledges that it has not relied on any statement, promise and/or representation made or given by or on behalf of the Vendor (whether via the Website or otherwise) which is not set out in the relevant Contract. Nothing in this condition shall exclude or limit the Vendor's liability for fraudulent misrepresentation.
2.4
Each order or acceptance of a quotation for Goods by the Buyer shall be deemed to be an offer by the Buyer to buy Goods subject to the Contractual Terms.
2.5
No order placed by the Buyer shall be deemed to be accepted by the Vendor until a written acceptance of order is issued by the Vendor (whether directly or via the Website) or (if earlier) the Vendor delivers the relevant Goods to the Buyer.
2.6
The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate in all respects.
2.7
Any quotation is given on the basis that no Contract shall come into existence until the Vendor (whether directly or via the Website) issues an acceptance of order to the Buyer. Any quotation is valid for a period of 5 Business Days only from its date, provided that the Vendor has not previously withdrawn it.
3.
DESCRIPTION
3.1
The quantity and description of Goods shall be as set out in the relevant Proposal or acceptance of order by the Vendor.
3.2
All samples, drawings, descriptive matter, specifications and advertising issued by the Vendor and any descriptions or illustrations contained in the Vendor's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the goods described in them and they shall not form part of a Contract. The Vendor is not (and shall not be) party to a sale by sample.
4.
DELIVERY
4.1
Unless otherwise agreed in writing by the Vendor, delivery of all Goods shall take place at the Vendor’s Site.
4.2
The Buyer shall take delivery of Goods within 10 Business Days of the Vendor giving it written notice that the Goods in question are ready for delivery.
4.3
A date (if any) specified by the Vendor for delivery of Goods is intended to be an estimate only and time for delivery shall not be of the essence. If no dates are so specified, delivery shall be within a reasonable time.
4.4
Subject to the other provisions of these conditions, the Vendor shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges and/or expenses caused, directly or indirectly, by any delay in the delivery of Goods (even if caused by the Vendor's negligence), nor shall any delay entitle the Buyer to terminate or rescind a Contract unless such delay exceeds 40 Business Days.
4.5
If, for any reason, the Buyer fails to accept delivery of any Goods when they are ready for delivery or the Vendor is unable to deliver Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations or otherwise failed to comply with its obligations hereunder:-
4.5.1
risk in the Goods in question shall pass to the Buyer (including risk for loss and/or damage caused by the Vendor's negligence);
4.5.2
the Goods in question shall be deemed to have been delivered; and
4.5.3
the Vendor may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance costs).
4.6
The Buyer shall, at its own expense, provide adequate and appropriate equipment and manual labour for loading/unloading the relevant Goods at the Delivery Address.
4.7
If the Vendor delivers to the Buyer a quantity of Goods of up to 10% more or less than the quantity accepted by the Vendor to be sold, the Buyer shall not be entitled to object to or reject the Goods (or any of them) by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.8
The Vendor may deliver Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the relevant Contract.
4.9
Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5.
NON-DELIVERY
5.1
The quantity of any consignment of Goods as recorded by the Vendor on despatch from the Vendor's Site shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2
The Vendor shall not be liable for any non-delivery of Goods (even if caused by the Vendor's negligence) unless the Buyer gives written notice to the Vendor of the non-delivery within 10 Business Days of the date when the Goods in question would, in the ordinary course of events, have been received.
5.3
Any liability of the Vendor for non-delivery of Goods shall be limited to replacing the Goods in question within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.
RISK/TITLE
6.1
Goods are at the risk of the Buyer from the time of delivery on the Delivery Date.
6.2
Ownership of Goods shall not pass to the Buyer until the Vendor has received, in full (in cash or cleared funds), all sums due to it in respect of:-
6.2.1
the Goods in question; and
6.2.2
all other sums which are (or which become) due to the Vendor from the Buyer on any account whatsoever.
6.3
Until ownership of Goods has passed to the Buyer, the Buyer shall:-
6.3.1
hold those Goods on a fiduciary basis as the Vendor's trustee;
6.3.2
store those Goods (at no cost to the Vendor) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Vendor's property;
6.3.3
not destroy, deface or obscure any identifying mark or packaging on or relating to those Goods; and
6.3.4
maintain those Goods in satisfactory condition and keep them insured on the Vendor's behalf (for their full price and against all risks) to the reasonable satisfaction of the Vendor and, immediately upon request by the Vendor, the Buyer shall exhibit the policy of insurance to the Vendor.
6.4
The Buyer may resell Goods before ownership has passed to it solely on the following conditions:-
6.4.1
any sale shall be effected in the ordinary course of the Buyer's business at full market value; and
6.4.2
any such sale shall be a sale of the Vendor's property on the Buyer's own behalf and the Buyer shall deal as principal (and not as agent) when making such a sale.
6.5
The Buyer's right to possession of Goods shall terminate immediately if:-
6.5.1
the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer;
6.5.2
the Buyer suffers or allows any diligence to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under a Contract, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; and/or
6.5.3
the Buyer encumbers or in any way charges any of Goods.
6.6
The Vendor shall be entitled to recover payment for Goods from the Buyer notwithstanding that ownership of Goods has not passed from the Vendor.
6.7
The Buyer grants the Vendor, its agents and employees an irrevocable licence to enter (at any time) any premises where Goods are or may be stored in order to inspect them and, where the Buyer's right to possession has terminated, to recover them.
6.8
Where the Vendor is unable to determine whether any goods are the Goods in respect of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Vendor to the Buyer in the order in which they were invoiced to the Buyer.
6.9
On termination of a Contract, howsoever caused, the Vendor's (but not the Buyer's) rights contained in this condition 6 shall remain in effect.
7.
PRICE
7.1
Unless otherwise agreed by the Vendor in writing, the Price shall be the price set out in the Proposal.
7.2
The Price shall be exclusive of all VAT, imposts, duties, levies and all costs/charges for packing, packaging, loading, unloading, shipping/carriage, insurance and delivery to the Delivery Address, all of which amounts the Buyer shall pay in addition (and that when it is due to pay the Price).
8.
PAYMENT
8.1
Subject to condition 8.4, payment of the Price is due (in the currency used in the Proposal) as follows:-
8.1.1
if the Price is less than £2,000 (or the equivalent thereof at the exchange rates prevailing as at the Proposal Date), within 2 Business Days following the date of Acceptance; and
8.
in any other case, within 2 Business Days following the Delivery Date.
8.2
Time for payment shall be of the essence.
8.3
No payment shall be deemed to have been received until the Vendor has received cleared funds.
8.4
All payments payable to the Vendor under a Contract shall become due immediately on its termination notwithstanding any other provision.
8.5
The Buyer shall make all payments due under a Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court decree requiring an amount equal to such deduction to be paid by the Vendor to the Buyer.
8.6
If the Buyer fails to pay the Vendor any sum due pursuant to a Contract, the Buyer shall be liable to pay interest to the Vendor on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Royal Bank of Scotland plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Vendor reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9.
QUALITY
9.1
Where the Vendor is not the manufacturer of Goods, the Vendor shall use reasonable endeavours to transfer to the Buyer the benefit of any warranty or guarantee given to the Vendor.
9.2
Subject to the other provisions of these conditions, the Vendor warrants that on delivery and for a period of 260 Business Days from the Delivery Date, Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
9.3
The Vendor shall not be liable for a breach of the warranty in condition 9.2 unless:-
9.3.1
the Buyer gives valid notice of the defect to the Vendor (and, if the defect is as a result of damage in transit, to the carrier) within 20 Business Days of the time when the Buyer discovers or ought to have discovered the defect; and
9.3.2
the Vendor is given a reasonable opportunity after receiving such notice to investigate/examine the Goods in question and the Buyer (if asked to do so by the Vendor) returns such Goods to the Vendor's Site (at the Buyer’s expense) for the investigation/examination to take place there.
9.4
The Vendor shall not be liable, in any way or to any extent, for a breach of the warranty in condition 9.2 if:-
9.4.1
the Buyer makes any further use of such Goods after giving such notice;
9.4.2
the defect arises because the Buyer failed to follow the Vendor's oral and/or written instructions as to the storage, installation, commissioning, use and/or maintenance of such Goods (as the case may be) or good trade practice; and/or
9.4.3
the Buyer alters or repairs such Goods without the prior written consent of the Vendor.
9.5
Subject to condition 9.3 and condition 9.4, if any of Goods do not conform with the warranty in condition 9.2, the Vendor shall, in its own absolute and unencumbered discretion, choose to repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Vendor so requests, the Buyer shall, at the Buyer’s expense, return the Goods (or such of them as are defective) to the Vendor’s Site.
9.6
If the Vendor complies with condition 9.5, it shall have no further liability for a breach of the warranty in condition 9.2 in respect of such Goods.
9.7
Any Goods replaced shall belong to the Vendor and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 260 Business Day period referred to in condition 9.2.
10.
LIMITATION OF LIABILITY
10.1
Subject to condition 4, condition 5 and condition 9, the following provisions set out the entire financial liability of the Vendor (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:-
10.1.1
any breach of the Contractual Terms;
10.1.2
any use made or resale by the Buyer of any Goods or of any product incorporating any Goods; and
10.1.3
any representation, statement or delictual act or omission (including negligence) arising under or in connection with a Contract.
10.2
any representation, statement or delictual act or omission (including negligence) arising under or in connection with a Contract.
10.3
Nothing in these conditions excludes or limits the liability of the Vendor:-
10.3.1
for death or personal injury caused by the Vendor's negligence;
10.3.2
under section 2(3), Consumer Protection Act 1987;
10.3.3
for any matter which it would be illegal for the Vendor to exclude or attempt to exclude its liability; or
10.3.4
for fraud or fraudulent misrepresentation.
10.4
Subject to condition 10.2 and condition 10.3:-
10.4.1
the Vendor's aggregate liability in contract, delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of a Contract shall be limited to the Price;
10.4.2
the Vendor shall not be liable to the Buyer for loss of profit, loss of business or depletion of goodwill (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 a Contract; and
10.4.3
the Vendor shall have no liability to a third party for losses, damages, costs, claims and/or expenses which arise in connection with (whether directly or indirectly) Goods and the Buyer shall indemnify the Vendor, on demand, in respect of the same.
11.
ASSIGNATION
Neither Party shall be entitled to assign a Contract or any part of it without the prior written consent of the other Party.
12.
FORCE MAJEURE
12.1
The Vendor reserves the right to defer the Delivery Date or to cancel a Contract or reduce the volume of Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Vendor including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 130 Business Days, the Buyer shall be entitled to give notice in writing to the Vendor to terminate a Contract.
12.2
Following termination of a Contract pursuant to condition 12.1, the Buyer shall pay the Vendor such part of the Price as is due in respect of Goods then delivered or, pursuant to condition 4.5, deemed to be delivered (in accordance with the relevant Contract).
13.
ENTIRE AGREEMENT
13.1
To the fullest extent permitted by law, the Contractual Terms represent an exhaustive statement of the terms of each Contract and no other term shall be deemed to be incorporated therein.
13.2
A Contract constitutes the whole and only agreement between the Parties relating to the supply of the Goods forming the subject matter thereof and supersedes and extinguishes all (if any) prior drafts, agreements, understandings, undertakings, representations, warranties and/or arrangements of any nature whatsoever (whether or not in writing) between the Parties in connection therewith.
13.3
The Buyer agrees that:-
13.3.1
it has not been induced to enter into a Contract in reliance upon (nor has it been given) any warranty, representation, statement, agreement or undertaking of any nature whatsoever other than as form part of the Contractual Terms; and
13.3.2
to the extent that it has been so induced, it unconditionally and irrevocably waives all claims, rights and remedies which it might otherwise have had in relation thereto.
14.
GENERAL
14.1
No waiver by either Party of any of the requirements of a Contract or of any of its rights thereunder shall be effective unless given in writing and signed by or on behalf of that Party and no forbearance, delay or indulgence by either Party in enforcing the provisions of a Contract shall prejudice or restrict the rights of that Party nor shall any waiver by either Party of any of the requirements a Contract or any of its rights thereunder release the other from full performance of its obligations stated therein.
14.2
Each provision of a Contract shall be construed separately and (save as otherwise expressly provided therein) none of the provisions thereof shall limit or govern the extent, application or construction of any other of them and, notwithstanding that any provision of a Contract may prove to be invalid or unenforceable, the remaining provisions of that Contract shall continue in full force and effect.
14.3
No variation of the terms of a Contract shall be effective unless made in writing and signed by each of the Parties.
14.5
The Parties do not intend any provision of any Contract to be enforceable by any person who is not a Party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
14.6
email to or such email address as may, from time to time, be notified in writing to the other Party for this purpose
14.6.1
first class post addressed, in the case of the Vendor, to the Vendor’s Site and, in the case of the Buyer, to its registered office or principal place of business;
14.6.2
personal delivery by hand to such address; or
14.6.3
email to or such email address as may, from time to time, be notified in writing to the other Party for this purpose
and any notice so served shall be deemed to have been served:-
(a)
in the case of 14.6.1 above, 2 Business Days after posting the same;
(b)
in the case of 14.6.2 above, upon delivery;
(c)
in the case of clause 14.6.3 above, upon transmission if it is sent if sent before 3 p.m. on a Business Day or 10 a.m. on the following Business Day in any other case (provided always that no error message indicating a failure to deliver has been received by the sender).
15.
GOVERNING LAW
These conditions and each Contract shall be governed by the law of Scotland and the Parties submit to the non-exclusive jurisdiction of the Scottish courts.