TERMS & CONDITIONS - TRADE

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1.Definitions and interpretation

1.1 In these Conditions the following definitions apply::
Applicable Law means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force

Business Day means a day other than a Saturday, Sunday or public holiday in England

Contract means the agreement between the Customer and the Distributor incorporating these Conditions and the Order Confirmation

Conditions means the Distributor’s terms and conditions as set out in this document
Customer the named party  in the Order Confirmation who has agreed to purchase the Goods
Distributor means Norfolk Leisure Lifestyle Limited

Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay
Goods means any goods forming the subject of this contract as set out  in the Order Confirmation

Incoterms means the Incoterms ® 2020 Rules

Location means the address or addresses for delivery of the Goods set out in the Order Confirmation

Order Confirmation means the confirmation sent by the Distributor to the Customer confirming the Order for the Goods
Price has the meaning set out at Condition 4
 

1.2 In these Conditions unless the context otherwise requires:

1.2.1 a reference to the Contract includes these Conditions and the Order Confirmation;

1.2.2 any headings in these Conditions s included for convenience only and shall have no effect on the interpretation of the Conditions;

1.2.3 words in the singular include the plural and vice versa;

 

2. Application of these Conditions

2.1 These Conditions apply to and form part of the Contract between the Customer and the Distributor. They supersede any previously issued terms and conditions of purchase or supply.

2.2 No other terms or conditions or other document shall form part of the Contract except to the extent that the Distributor otherwise agrees in writing

2.3 No variation of these Conditions or to an Order Confirmation shall be binding unless expressly agreed in writing by the Customer and the Distributor.

 

3. Incorporation of Incoterms

3.1 The Incoterms are incorporated into these terms and conditions as follows:

3.1.1 FOB – Free on Board

3.1.2 EXW – Ex-Works

3.1.3 DDP – Delivered Duty Paid

3.2 Any reference in the relevant Incoterms to the Buyer will be to the Customer and any reference to the Seller will be to the Distributor.

3.3 Where any order for Goods to which the Incoterms apply are cancelled by the Customer then the Distributor will be entitled to charge (and the Customer will pay) a cancellation charge equal to the sum of 30% of the invoice value for the Goods.

 

4. Price

The price for the Goods shall be as set out in the Order Confirmation.

 

5. Payment

5.2 The Customer shall pay all invoices on the date specified in the invoice and/Order Confirmation.

5.3 Time of payment is of the essence. Where any sums due under these Conditions re not paid in full by the due date:

5.3.1 the Distributor may, without limiting its other rights, charge interest on such sums at 4% a year above the base rate of HSBC Bank plc from time to time in force (and 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;

5.3.2 the Customer shall on demand indemnify (and keep indemnified) the Distributor from and against all losses, damages, liability, costs (including legal fees) and expenses incurred by the Distributor as a result of or in connection with the Customer’s failure to comply with its obligations to pay any monies to the Distributor on the due date for payment.

 

6. Delivery and performance

6.1 The Goods shall be delivered by the Distributor, or its nominated carrier, to the Location on the date(s) specified in the Confirmation Order.

6.2 The Goods shall be deemed to be delivered on completion of unloading of the Goods at the Location.
6.3 The Distributor may at its discretion deliver the Goods by instalments in any sequence. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment. The Customer shall not be entitled to reject a delivery of the Goods on the basis that an incorrect volume of the Goods has been supplied.
6.4 Time is not of the essence in relation to the delivery of the Goods. The Distributor shall use its reasonable endeavours to meet any dates for delivery given to the Customer, but any such dates are indicative only.
6.5 The Distributor shall not be liable for any delay in or failure of performance caused by:

6.5.1 the Customer’s failure to make the Location available;

6.5.2 the Customer’s failure to prepare the Location in accordance with any instructions given by the Distributor;

6.5.3 the Customer’s failure to provide the Distributor with adequate instructions for delivery;

6.5.4 Force Majeure.

6.6 If the Customer fails to accept delivery of the Goods the Distributor shall store and insure the Goods pending delivery and the Customer shall pay all costs and expenses incurred by the Distributor in doing so.

6.7 If 20 Business Days following the due date for delivery of the Goods the Customer has not taken delivery of or collected them, the Distributor may resell or otherwise dispose of the Goods without any obligation or liability to the Customer. The Distributor shall be entitled to invoice the Customer (and the Customer shall pay) any shortfall between the Price paid by the Customer for the Goods and any monies received by the Distributor on such resale or disposal.

 

7. Risk

Risk in the Goods shall pass to the Customer on delivery.

 

8. Title

8.1 Title to the Goods will pass to the Customer once the Distributor has received payment in full for all debts owed by the Customer to the Distributor (including payment for the Goods) at any given time.

8.2 Until title to the Goods has passed to the Customer, the Customer will:

8.2.1 hold the Goods as bailee for the Distributor;

8.2.2 store the Goods separately from all other material in the Customer’s possession;

8.2.3 take all reasonable care of the Goods and keep them in reasonable condition;

8.2.4 insure the Goods: (i) with a reputable insurer (ii) from the date  of delivery (iii) against all risks (iv) for an amount at least equal to the Price (v) noting the Distributor’s interest on the policy;

8.2.5 ensure that the Goods are clearly identifiable as belonging to the Distributor;

8.2.6 not remove or alter any mark on or packaging of the Goods;

8.2.7 on reasonable notice permit the Distributor to inspect the Goods during the Customer’s normal business hours and provide the Distributor with such information concerning the Goods as the Distributor may request from time to time;

8.2.8 inform the Distributor immediately if it:

(a) stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;

(b) is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Distributor reasonably believes that to be the case;

(c) becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;

(d) has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;

(e) has a resolution passed for its winding up;

(f) 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;

(g) is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title in those items;

(h) receives any demand for repayment of lending facilities, or

(i) passes any board resolution authorising any steps to be taken to enter into an insolvency process.

 

9. Manufacturers Warranty

9.1 Any claim for a manufacturing defect in the Goods is to be made under the Manufacturers Warranty. Any other claim for Goods which are alleged to be damaged, defective or not of satisfactory quality following delivery , is to be made pursuant to (and is subject to the provisions of) Condition 10.

9.2 The relevant Manufacturers Warranty which applies to the Goods can be found on the Distributor’s website at [insert link] under Product Support. The extent and duration of that warranty will vary according to the type of Goods. By placing the order for the Goods the Customer confirms that they have read and understand the limits and conditions that apply to the relevant Manufacturers Warranty.

9.3 All other warranties, conditions or terms relating to the fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are excluded to the fullest extent permitted by law.

9.4 To be able to claim under a Manufacturers Warranty the Customer may be required to first register that warranty and to do so within the specified time period – the Customer must check the relevant warranty to confirm the position. The Distributor will not be liable in the event of any failure to so register.

9.5 The Manufacturers Warranty will not apply to any Goods which are sold by the Customer to any third party outside the United Kingdom or where the Goods are no longer in the United Kingdom.

 

10. Claims  

10.1 As the Customer’s sole and exclusive remedy that any Goods delivered are damaged, defective or not of satisfactory quality, the Distributor  shall, at its option, repair, replace or (in the event that the Distributor deems repair or replacement not appropriate) refund the Price paid for the Goods provided that the Customer:

10.1.1 serves a written notice on the Distributor not later than ten Business Days from delivery in the case of defects discoverable by a physical inspection, or within a reasonable period of time from delivery in the case of latent defects;

10.1.2 such notice specifies that some or all of the Goods are damaged, defective or otherwise not of satisfactory quality and identifies in sufficient detail the nature and extent of the damage, the defects or why the goods are not of satisfactory quality;

10.1.3 gives the Distributor a reasonable opportunity to examine the Goods;

10.1.4 if required by the Distributor promptly returns to the Distributor (at its own expense) the Goods and to do so properly and securely packaged.

10.2 The Distributor shall not be liable for any damage or defects:

10.2.1 which arise by reason of wear and tear, wilful damage, negligence or could be expected to arise in the normal course of use of the Goods;

10.2.2 to the extent caused by the Customer’s failure to comply with the Distributor’s instructions in relation to the Goods, including any instructions on installation, storage or maintenance;

10.2.3 to the extent caused by the Distributor following any specification, instruction or requirement of or given by the Customer in relation to the Goods;

10.2.4 where the Customer modifies any Goods without the Distibutor’s prior consent or, having received such consent, not in accordance with the Distributor’s instructions; or

10.2.5 where the Customer uses any of the Goods after notifying the Distributor of any damage or defects.

 

11. Cancelling

11.1 A Customer may cancel their order for the Goods at any time prior to dispatch by complying with the notification provisions set out in Condition 11.2. 

11.2 To cancel a Customer must notify the Distributor prior to dispatch of their decision to cancel by sending an email orders@norfolkleisure.co.uk (subject matter cancellation) with the Customer’s name, description of the Goods and their order reference number.  No notice of cancellation sent after dispatch will be effective.

 

12. Limitation of liability

12.1 Subject to condition 12.3 the Distributor’s total liability shall not exceed the invoiced value of the Goods.

12.2 The Distributor shall have no liability to the Customer for any indirect or consequential or special loss , loss of profit, loss of revenue, loss of use, loss of contract, loss of commercial opportunity, loss of savings, discount or rebate, harm to reputation or loss of goodwill and/or wasted expenditure.
12.3 Neither party’s liability shall be limited in any way in respect of the following:

12.3.1 death or personal injury caused by negligence;
12.3.2 fraud or fraudulent misrepresentation; and
12.3.3 any other losses which cannot be excluded by Applicable Law.

 

13. Prohibition on Commercial Sale

The Goods are not for commercial re-sale.

 

14. Force Majeure

The Distributor shall not have any liability for any failure or delay in performing its obligations under the Contract to the extent the same results from Force Majeure.

 

15. Governing Law
The Contract and any dispute or claim arising out of, or in connection with it, its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.

 

16. Jurisdiction

The Customer and the Distributor 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.

 

17. Notices

17.1 Any notice or other communication under these Conditions shall be in writing, be sent to the relevant party at the address set out in the Order Confirmation  and may be given and are deemed received::
17.1.1 by hand: at the time of delivery;;
17.1.2 by post: 9:00 am on the second Business Day after posting; and

17.1.3 by e mail: on receipt of a delivery e mail from the correct e mail address.
17.2 Any change to the contact details of a party shall be notified to the other party in accordance with clause 17.1 and shall be effective:

17.2.1 on the date specified in the notice as being the date of such change; or

17.2.2 if no date is specified 5 Business Days after the notice is deemed to be received.

 

18.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 this Contract.