“Buyer” means the person, firm or company who accepts a Quotation of the Seller for the sale of the Goods or whose Order for the Goods is accepted by the Seller.
“Conditions” means the terms and condition of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Buyer and the Seller.
“Contract” means the contract for the purchase and sale of the Goods.
“Force Majeure” means, including but not limited to, any act, event, non-happening, omission or accident beyond reasonable control and includes (without limitation) strikes, lock-outs, trade disputes or other industrial action, difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown of machinery, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, sabotage, insurrection, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport, impossibility of the use of public or private telecommunications networks, import or export regulations or embargoes, the acts, decrees, legislation, regulations or restrictions of any government or local authority.
“Goods” means the parts, products, and charges (including any instalment of the Goods or any parts for them) which the Seller is to supply in accordance with these Conditions.
“Order” means any Order of the Buyer for the Goods.
“Quotation” means any Quotation of the Seller to the Buyer for the Goods, whether via the Sellers website or directly to the Buyer over the telephone.
“Seller” means Be Safe Direct Limited whose registered address is 2 Floor, Unit 5, 165 Granville Road, London, NW2 2AZ (registered in England and Wales under registration number 07234883).
“Writing” includes letter, email or, facsimile transmission and comparable means of communication.
In these Conditions and unless the context otherwise requires:
1.2.1. the paragraph headings are inserted for reference purposes only and shall not affect interpretation;
1.2.2. words importing the singular include the plural and vice versa;
1.2.3. references to a person include an individual, firm, company, corporation, unincorporated body of persons and any government entity and his, her, their or its successors in title, or its permitted assignees, and permitted transferees.
2. Basis of the Sale
2.1 The Seller shall sell and the Buyer shall buy the Goods in accordance with any written Quotation of the Seller which is accepted by the Buyer, or any written Order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such Quotation is accepted or purported to be accepted, or any such Order is made or purported to be made, by the Buyer whether made orally or otherwise.
2.2 The Seller’s employees or agents are not authorised to make any representations concerning the Goods.
2.3 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods is followed or acted upon entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any such advice or recommendation.
2.4 Any typographical, clerical or other errors or omissions in any sales literature, Quotation, Contract, Order, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction, without notice to the Buyer, and without any liability on the part of the Seller.
2.5 Where the Buyer is in breach of these Conditions, the Seller is entitled, but not limited, to rely on the remedies set out in sub-clause 5.5.1 to 5.5.3.
3. Orders and Specifications
3.1 No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller or his authorised representative. Where the Buyer orders Goods by telephone, the Seller will send confirmation of that Order in Writing to the Buyer within three days of such Order.
3.2 The quantity, quality and description of any specification for the Goods shall be those set out in the Seller’s Quotation.
3.3 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform to any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.4 No Order which has been accepted by the Seller may be cancelled or varied by the Buyer except with the prior agreement of the Seller in Writing, and on terms that the Buyer shall indemnify the Seller in full against all losses (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
3.5 The Seller reserves the right, at its sole discretion to refuse to accept any Order, cancel any Order, to suspend deliveries against an Order, and to refuse cancellation of any Order or part thereof.
3.6 In the event that the Buyer provides the Seller with a building plan, specification or otherwise, and requests the Seller to provide the Buyer with their recommendation for the likely type, size and quantity of Goods that will be required in the Order for the Buyer to comply with, such building plan or specification, the Seller may, at it sole discretion, provide such recommendation on the absolute understanding that:
3.6.1 the Seller provides no warranty as to the building plan, specification, or otherwise;
3.6.2 the Seller’s recommendation and Quotation are provided solely based on the information provided by the Buyer to the Seller;
3.6.3 it is the Buyers absolute responsibility and liability to ensure the recommendation provided by the Seller to the Buyer complies with the Buyer’s requirements according to their building plan, specification or otherwise;
3.6.4 the Buyer shall be responsible for installation of the Goods in accordance with the manufacturer’s installation instructions.
4. Price of the Goods
4.1 The price of the Goods shall be as set out in the Seller’s Quotation. All Quotations are estimates only and are valid for fourteen days from the date of the Quotation, or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer. Goods supplied for export from the United Kingdom shall be subject to additional charges.
4.2 The Seller reserves the right, by giving notice in Writing to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the reasonable control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, withholding tax, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any Quotation of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices quoted by the Seller are excluding delivery, and the Buyer shall be liable to pay the Seller’s charges for delivery, packaging and insurance.
5. Terms of payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Buyer shall pay the price of the Goods or Quotation at the time of Order.
5.2 The Seller at his sole discretion reserves the right to refuse to accept any Order without payment in full in advance by the Buyer for the full price of the Goods and delivery packaging and insurance.
5.3 Where the Seller has accepted to provide Goods to the Buyer by means of a credit account, (confirmation of such account must first be obtained from the Seller in Writing) payment of any invoice or invoices must be made by means of cleared funds by the “Final Date for Payment” which is 30 days from the date of the invoice (the “Payment Due Date”)
5.4 The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.5 If the Buyer fails to make any payment by the Final Date for Payment then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.5.1 Immediately cancel the Contract or suspend any further services or deliveries to the Buyer, without any notice to the buyer.
5.5.2 Appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other contract between Buyer and the Seller) as the Seller may think fit; and
5.5.3. Charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 8% percent above base rate of the Bank of England (as amended from time to time) per annum until payment in full is made including any interest due (a part of a month being treated as a full month for the purpose of calculating interest).
6.1 Delivery of the Goods shall be made by the Seller to the Buyer’s address as specified in the Order and/or the Quotation.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be the essence of the Contract unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date and the Buyer shall accept the Goods.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 The Seller’s liability shall be limited to the cost of refund of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 attempt to re-deliver the Goods and any such costs associated with such delivery shall be paid by the Buyer
6.5.2 store the Goods until they are delivered to the Buyer and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.5.3 sell the Goods at the price readily obtainable and (after deducting all reasonable storage insurance and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract
7. Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1. When the Goods are delivered to the Buyer;
7.1.2. In the case of Goods to be delivered otherwise than at the Buyer’s premises, the time of delivery of the Goods shall be the actual time of delivery;
7.1.3. If the Buyer fails to take delivery of the Goods, or fails to give the Seller adequate delivery instructions, then the time of delivery of the Goods shall be the time when delivery was attempted by the courier company used by the Seller.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, title in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds full payment of the price of the Goods or Order, and all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 If the Seller has received by means of cleared funds payment in full for the price of the Goods or Order, title and risk in the Goods shall pass to the Buyer when the Goods leave the Seller’s manufacturer’s or supplier’s depot, factory or premises.
7.4 The Seller will be entitled to recover or re-sell the Goods or any part of the Goods on the occurrence of any of the following events:
7.4.1 The Seller has not received the payment for the Goods by the Final Date for Payment.
7.4.2 If before the Final Date for Payment the Buyer is made Bankrupt or has a Receiver appointed over all or any part of its business or a Petition issued or resolution passed to the winding up of the Buyer or upon the commencement of any other act or proceeding in which the Buyers solvency is involved.
7.4.3 If before the Final Date for Payment the Buyer ceases or threatens to cease carrying on his business.
7.5 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property, but shall be entitled to resell or use the Goods in the ordinary course of its business.
7.6 Until such time as the property in the Goods passes to the Buyer, the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller, and if the Buyer fails to do so forthwith, upon reasonable notice to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.7 Until such time as the property and the Goods passes to the Buyer the entire proceeds of the sale or otherwise of the Goods by the Buyer shall be held in trust by the Buyer for the Seller and shall not be mixed with other money paid into any overdrawn bank account as shall be at all material times identified as the Seller’s money.
7.8 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 Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8. Warranties and liability
8.1 Any warranty provided by the Seller is subject to the following conditions:
8.1.1. The Seller shall be under no liability in respect of any errors, omissions, mis-descriptions or illustrations contained in or referred to on the Seller’s website and the Seller reserves the right to make any deletions, alternations, amendments or additions to such website without notice to the Buyer.
8.1.2. The Seller 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 the Seller’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Sellers’ approval.
8.1.3. The Seller shall be under no liability regarding any warranty, condition or guarantee or otherwise if the total price for the Goods has not been paid by the Buyer when the Goods were Ordered or where payment has not been made by the Final Date for Payment.
8.1.4. For the avoidance of doubt, any warranty does not extend to parts, materials or equipment not manufactured by the Seller, and the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer in the Goods to the Seller.
8.2 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.3 The Buyer shall inspect the Goods for defects at the time of delivery. Any claim by the Buyer, which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 3 days from the date of delivery or (where the defect or failure was not apparent, on reasonable inspection) within a reasonable time after discovery of the defect or failure.
8.4 If upon delivery, the Buyer does not inspect the Goods or notify the Seller in accordance with these Conditions, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the prices for the Goods.
8.5 Defective Goods shall be returned by the Buyer to the Seller, and the Buyer shall bear the cost of delivery of the Goods to the Seller. Following receipt of the defective Goods the Seller shall:
8.5.1 inspect and/or test the Goods and notify the Buyer whether the Goods were found to be defective.
8.5.2 if the Goods are found to be defective the Buyer shall be entitled to a refund of the price of the Goods, or to a replacement.
8.6 Buyers shall not be entitled to a refund repair or replacement covered under any warranty or guarantee provided by the Seller or the manufacturer, where the defect is caused (howsoever) by:
8.6.1 use or misuse, neglect, operation, treatment, tampering, adjustment or installation not carried out in accordance with the manufacturer’s instruction or if unauthorized persons carry out installation or any alterations or repairs;
8.6.2 accidents, fire, liquids, chemicals or other substances, flooding, vibrations, excessive heat, improper ventilation, power surges, excess or incorrect supply or input voltage, radiation, electrostatic discharges including lightning, other external forces and impacts;
8.6.3 ancillary equipment attached to or used in connection with the Goods not recommended by the Seller or manufacturer, causing problems or damage.
8.7 No Goods delivered to the Buyer, which are in accordance with the Contract, will be accepted for return without the prior approval of the Seller in Writing on terms to be determined at the absolute discretion of the Seller.
8.8 If the Seller agrees to accept any such Goods for return the Buyer shall be liable to pay a restocking charge of 25% of the Order price. Such Goods must be returned by the Buyer as new in their original boxes and cases and the Buyer shall pay the cost of carriage for any such return.
8.9 Goods returned without the prior written approval of the Seller may at the Sellers absolute discretion be returned to the Buyer, or stored at the Buyers cost, without prejudice to any rights or remedies the Seller may have.
8.10 The Seller reserves the right to refuse the return of Goods supplied to the Buyer’s specific Order which are not held in stock by the Seller, or are of a large quantity (at the Sellers sole discretion), or are for a bespoke Order. All cancellations of such Orders must be confirmed in Writing prior to the Goods being manufactured and/or despatched, otherwise all such Orders shall be non-refundable. The Buyer will be liable for the Order price of the Goods where they have been specially made to the Buyers instructions and the Order of any such Goods cannot be cancelled.
8.11 The Seller shall not be liable to the Buyer 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 the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer. The Seller’s liability to the Buyer under the Contract shall not exceed the price of the Goods.
8.12 The Seller 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 Seller’s obligations in relation to the Goods, if the delay or failure was due to a Force Majeure.
9.1 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
9.2 Without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
9.3The Seller will have no liability to the Buyer for any losses, damages or expenses arising from the Buyers use or inability to use or access the Sellers website or from any action taken (or refrained from being taken) as a result of using the Sellers website.
10.1 The Seller shall be entitled to 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, then the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary if:
10.1.1 the Buyer commits a breach of any of the these Conditions;
10.1.2 any distress, execution, or other legal process is levied upon any of the assets of the Buyer;
10.1.3 the Buyer enters into any arrangement or composition with its creditors, commits any act of bankruptcy, or (being a corporation) if an order is made or an effective resolution is passed for its winding up (except for the purpose of amalgamation or reconstruction), or if a petition is presented to the court, or if a receiver, administrative receiver, or administrator is appointed in respect of the whole, or any part of, the Buyer’s undertaking or assets;
10.1.4 in the case of a company the Buyer ceases, or threatens to cease, to carry on its business;
10.1.5 the financial position of the Buyer deteriorates to such an extent, that in the opinion of the Seller, the capability of the Buyer adequately to fulfil its obligations under these Conditions, has been placed in jeopardy;
10.1.6 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer;
10.1.7 the Buyer does not pay any money due from it to the Seller, on or before the Final Date for Payment;
10.1.8 there is any breach by the Buyer of these Conditions (other than the non-payment of money), and the Buyer is unable to remedy the breach within 14 days notice, in Writing, by the Seller to the Buyer;
10.1.9 by reason of an event of Force Majeure, either party is materially prevented from performing its obligations for a period of 3 consecutive calendar months.
11.1. Any notice required or permitted to be given by either party to the other under these 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.
11.2. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3. No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
11.4. The Seller may transfer, assign, charge, sub-contract its rights and obligations under these Conditions at any time during this agreement, and this will not affect the Buyers rights.
11.5. The Buyer may not assign, transfer, charge or sub-contract any of its rights or obligations under these Conditions including but not limited to any third party or parent company.
11.6. Unless otherwise stated, the copyright, logo, database right and other intellectual property rights in all material (including without limitation the database, design, text, photographs, graphical images and layout) are owned by Seller or its licensors is protected by international copyright, authors’ rights and database right laws. The compilation of all content is the exclusive property of the Seller and our affiliates and is protected by United Kingdom and international copyright and database right laws.
11.7. Third parties cannot benefit from this Agreement under The Contracts (Rights of Third Parties) Act 1999.
12. Entire Agreement
12.1 These Conditions, and the Contract referred to herein, represent the entire agreement between the Seller and the Buyer, and supersede any prior agreement, understanding, or arrangement between the parties, whether oral or in Writing.
12.2 If any provision contained in these Conditions is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, in whole or in part that provision or and the remainder of the provision in question shall be severed from these Conditions, and the remaining provisions shall continue in full force and effect.
13. Governing Law and Jurisdiction
These Conditions shall be governed by, and construed in accordance with, English law. Disputes arising in connection with these Conditions shall be subject to the exclusive jurisdiction of the English courts.
Published in PBC Today, David Mowatt, chairman of the Smoke Control Association (SCA) has written an article on the future of building regulations and touching on competence, compliance and a commitment to change.
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