(1) Wholegood may contact the trade references that the Customer has nominated, (2) the details of the Customer's name, address and payment record may be submitted to a credit reference agency, (3) personal data contained on this Form will be processed by and on behalf Wholegood in connection with the provision of our Goods, and (4) Wholegood may disclose the data contained in this form in order to comply with legal and regulatory obligations.
It is important that the Customer has read the Terms of Sale (below) before signing this form. By signing this Form, the Customer unconditionally accepts that the Terms of Sale shall be the only ones that apply to all Orders that are made by the Customer.
TERMS OF SALE OF YEOH SAXTON-PIZZIE LTD T/A WHOLEGOOD
3.1 The definitions in this clause apply in the terms and conditions set out in this document: Goods: the products that we are selling to you as set out in the Order. Order: your order for the Goods as submitted to us by telephone and/or by email in accordance with the updated price lists provided by us to you by fax and email on a weekly basis. Terms: the terms and conditions set out in this document. Writing: or written includes faxes and e-mail.
3.2 Headings do not affect the interpretation of these terms.
4. BASIS OF SALE
4.1 These Terms, the Order and our price list are considered by us to set out the whole agreement between you and us for the sale of the Goods. Please ensure that you read and understand these Terms before you sign and submit the Order and ensure that the Order is complete and accurate, because you will be bound by the Terms once a contract comes into existence between us, in accordance with clause 2.5.
4.2 Any descriptions, photographs or advertising we issue or illustrations contained in our brochures or website, are issued or published solely to provide you with an approximate idea of the Goods they describe. They do not form part of the contract between you and us or any other contract between you and us for the sale of the Goods.
4.3 If any of these Terms are inconsistent with any term of the Order, the Order shall prevail.
4.4 These Terms shall become binding on you and us when we receive your Order by telephone and/or email (whichever is first).
4.5 You may place Orders up to the amount of the monthly credit limit we have agreed with you (Credit Limit). We shall not accept your Order if any such Order received by us results in you exceeding your Credit Limit. If for any reason an Order is processed which results in your Credit Limit being exceeded then the excess, together with any interest payable must be repaid in full upon request by us.
4.6 Any price list provided for the Goods is given on the basis that a binding contract shall only come into existence in accordance with clause 2.4. Such price list shall be valid for a period of seven calendar days from its date of issue, unless we notify you in writing that we have withdrawn it during this period.
4.7 You may amend or cancel an Order up to 12 hours before Delivery by telephone and/or email (whichever is first). If you amend or cancel an Order, your liability to us shall be limited to payment to us of all costs we reasonably incur in fulfilling the Order until we receive your amendment or cancellation, except that where the amendment or cancellation results from our failure to comply with these Terms you shall have no liability to us for it.
4.8 We have the right to revise and amend these Terms and to vary your Credit Limit from time to time by giving you such notice as required by law.
5. THE GOODS
5.1 We warrant that on Delivery, the Goods shall (a) confirm in all material respects with their description subject to any qualification or representation contained in the brochures, advertisements or other documentation; (b) be of satisfactory quality; (c) be fit for any purpose we say the Goods are fit for; and (d) comply with all applicable statutory and regulatory requirements for selling the Goods in the United Kingdom.
5.2 This warranty does not apply to any defect in the Goods arising from wilful damage, accident, negligence by you or any third party.
5.3 We will take reasonable steps to pack the Goods properly and to ensure that you receive your Order in good condition.
5.4 These Terms apply to any replacement Goods we supply to you in the unlikely event that the original Goods are faulty or do not otherwise conform with these Terms.
6.1 We will deliver the Goods to you within one calendar day of the date of the Order.
6.2 Delivery of the Order shall be completed when we deliver the Goods to your premises or at any other premises designated by you in writing at the time of the Order (Delivery).
6.3 The Goods will be your responsibility from the time of Delivery.
6.4 We will take reasonable steps to meet the delivery date set out on the Order or as otherwise agreed between us in writing. However, occasionally delivery may be affected by factors beyond our control and so cannot be guaranteed. We will let you know if we become aware of an unexpected delay and will arrange a new delivery date with you.
6.5 If you fail to take Delivery of an Order then except where this failure is caused by our failure to comply with these Terms we shall have no liability to you for late delivery.
6.6 If you have not taken Delivery within two calendar days of the delivery date we shall have the absolute discretion to resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, pay you for any excess over the price of the Goods or charge you for any shortfall below their price.
7. DEFECTIVE GOODS & RETURNS
7.1 In the unlikely event that the Goods do not conform with clause 3.1, please let us know as soon as possible after delivery, in any event no later than 12 hours from the time of Delivery, failing which you shall be deemed to have accepted the Goods. If the Goods do not confirm with clause 3.1, we will replace the rejected Goods or, if replacement Goods are not available we will provide you with a full refund. Once we have complied with the replacement or refund, we shall have no further liability to you in respect of any failure of the rejected Goods to comply with clause 3.1.
7.2 By accepting Delivery (and not rejecting the Products in accordance with clause 3.1), you acknowledge that the Goods are fit for their purpose. We shall not be liable for any claim or action that results from the consumption of such Goods and you shall indemnify us and keep us fully indemnified against any and all such claims or actions. You acknowledge that, following Delivery, the basis of any such claim or action results purely from an act or omission of you or your employees in the storage, handling or processing of the Goods.
8. PRICE & PAYMENT
8.1 The price of the Goods will be as set out in the price list we provide to you from time to time.
8.2 It is always possible that, despite our best efforts, some of the Goods we sell may be incorrectly priced. Where the correct price of the Goods is less than our stated price, we will charge the lower amount when dispatching the Goods to you. If the correct price of the Goods is higher than the price stated on the latest price list, we will normally, at our discretion, either contact you for instructions before dispatching the Goods, or reject the Order and tell you. If the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mis-pricing, we do not have to provide the Goods to you at the incorrect (lower) price.
8.3 We may invoice you for the Goods on or at any time after Delivery. Payment for all Goods must be made in full and in cleared funds by the 15th day of the calendar month following the receipt of our invoice (Due Date). Payment shall be made to the bank account nominated in writing by us.
8.4 If you do not make any payment due to us by the Due Date, we may charge interest to you on the overdue amount at the rate of 4% a year above the base lending rate of Barclay Bank plc from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with the overdue amount.
8.5 Without limiting any other remedies or rights that we may have, if you do not pay us on time, we may, at our absolute discretion, cancel or suspend your Credit Limit and any other outstanding Order until you have paid the outstanding amounts.
8.6 Clauses 6.4 and 6.5 shall not apply for the period of any dispute if you dispute the payment owing in good faith and let us know immediately after you have received the invoice that you dispute it.
9. LIMITATION OF LIABILITY
9.1 We shall not be responsible for losses that result from our failure to comply with these Terms including, but not limited to, any loss of income, revenue, business or anticipated savings or any waste of time or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.2 This clause does not include or limit in any way our liability for (a) death or personal injury caused by our negligence; or (b) fraud or fraudulent misrepresentation.
10. EVENTS OUTSIDE OUR CONTROL
10.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by events outside our reasonable control (Force Majeure Event).
10.2 A Force Majeure Event includes any act, event, non-occurrence, omission or accident beyond our reasonable control and includes, in particular (without limitation), strikes, lock-outs or other industrial action; or civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, or fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; or impossibility of the use of railways, shipping, motor transport or other means of public or private transport; or impossibility of the use of public or private telecommunication networks.
10.3 Our obligations under these Terms are suspended for the period that the Force Majeure Event continues, and we will have an extension of time to perform these obligations for the duration of that period. We will take reasonable steps to bring the Force Majeure Event to a close or to find a solution by which our obligations under these Terms can be performed despite the Force Majeure Event.
You may not transfer any of your rights or obligations under these Terms to another person without our prior written consent, which we will not withhold unreasonably. We can transfer all or any of our rights and obligations under these Terms to another organisation, but this will not affect your rights under these Terms.
12.1 Each party undertakes that it shall not at any time during this agreement and for a period of two years after termination disclose to any person any confidential information disclosed to it by the other party concerning the business or affairs of the other party, including but not limited to information relating to a party's operations, processes, product information and prices of Goods, market opportunities and customers (Confidential Information), except as permitted by clause 10.2.
12.2 Each party may disclose the other party's Confidential Information to (a) its employees, officers, agents, consultants or sub-contractors (Representatives) who need to know such information for the purposes of carrying out the party's obligations under these Terms, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 10.2 as though they were a party to this agreement. The disclosing party shall be responsible for its Representatives' compliance with the confidentiality obligations set out in this clause; and (b) as may be required by law, court order or any governmental or regulatory authority.
12.3 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this agreement are granted to the other party or to be implied from these Terms.
Either party may give notice to the other at either the fax number or postal address or delivery address provided. Notice will be deemed received and properly served at the time of transmission where a fax is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that the letter was properly addressed, stamped and placed in the post and, in the case of a fax, that the notice was transmitted by fax to the fax number of the party.
14.1 If any court or competent authority decides that any of the provisions of these Terms are invalid, unlawful or unenforceable to any extent, the term will, to that extent only, be severed from the remaining terms, which will continue to be valid to the fullest extent permitted by law.
14.2 If we fail, at any time while these Terms are in force, to insist that you perform any of your obligations under these Terms, or if we do not exercise any of our rights or remedies under these Terms, that will not mean that we have waived such rights or remedies and will not mean that you do not have to comply with those obligations. If we do waive a default by you, such waiver will not mean that we will automatically waive any subsequent default by you. No waiver by us of any of these Terms shall be effective unless we expressly say that it is a waiver and we tell you so in writing.
14.3 A person who is not party to these Terms shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.
14.4 These Terms shall be governed by English law and we both agree to the non-exclusive jurisdiction of the English courts. We hereby agree to the Terms of Sale set out above.