Terms and Conditions
Definitions – For the following Conditions, the subsequent definitions apply:
- Gypsumtools Limited (registered in England and Wales, company number 07635823)
Business Day: any day of the week when banks in London are open for business (excluding a Saturday, Sunday or Public Holiday).
Conditions: the terms and conditions presented in this document.
Contract: the Contract set out for the sale and purchase of Goods and/or Services between Gypsumtools and the Customer, in concurrence with these Conditions.
Customer: the individual or company that purchases Goods and/or Services from Gypsumtools.
Force Majeure Event: the meaning of this is given in Condition 18.
Goods: the merchandise (or any part of them) established in the Order and/or Specification.
Incoterms: the international rules for the interpretation of trade terms published by the International Chamber of Commerce in 2000.
Order: the Order placed by the Customer for Goods and/or Services, as demonstrated in the Customer’s purchase order form or the Customer’s acceptance in writing of the Gypsumtools quotation, as the case may be. Services: the Services that are supplied by Gypsumtools to the Customer, as demonstrated in the Order and/or Specification.
Service Level Agreement: the service levels, as agreed by all involved parties in writing, to which the Goods and/or Services are to be provided where the Goods and/or Services are personalised to the Customer’s own requirements.
Specification: any description or Specification for the Goods and/or Services agreed by the Customer in writing, including any related drawings and plans produced by Gypsumtools for the Customer, or supplied to Gypsum tools by the Customer.
- Gypsumtools Limited (registered in England and Wales, company number 07635823)
Basis of Contract
- The Conditions outlined here apply to the Contract with exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing. These Conditions shall take precedent over any additional written terms set out in the Contract or the Service Level Agreement to the extent that there is any inconsistency. Incoterms shall apply but where they conflict with these Conditions, these Conditions shall predominate.
- The Order constitutes an offer by the Customer to purchase, in accordance with these Conditions, Goods and/or Services.
- The Order will only be deemed as accepted when Gypsumtools issues a written acceptance of the Order, or when the Goods and/or Services are delivered by Gypsumtools (whichever is soonest), at this point the Contract will come into existence.
- The Contract creates the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given on behalf of Gypsumtools which is not given in the contract. Any samples, drawings, descriptive matter, or advertising delivered by Gypsumtools, and any descriptions or illustrations contained in Gypsumtools’ catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them, and shall not form any part of the Contract, or any other Contract between Gypsumtools and the Customer for the sale of Goods.
- A quotation for the Goods set out by Gypsumtools will not constitute an offer. A quotation will only be valid for the specified period on the quotation. If no period is specified, the quotation can be withdrawn at any time.
Quality of Goods
- Gypsumtools warrants that Goods will conform in all material respects with their description and any applicable Specification and be free from material defects in design, material and workmanship on delivery, and for a period of 12 calendar months succeeding the date of delivery (or any other period agreed in writing by the parties).
- Subject to Condition 3(c), if: (i) during the warranty period, if the Customer gives notice, in writing, of discovery that some or all of the Goods do not comply with the warranty set out in Condition 3(a); (ii) a reasonable opportunity of examining such Goods is given to Gypsumtools; and (iii) if asked to do so by Gypsumtools, the Customer returns such Goods to Gypsumtools’ place of business at the cost of the customer, then, subject to Gypsumtools’ acceptance that there is a valid reason for the rejection of such Goods, Gypsumtools shall reimburse to the Customer all reasonable costs incurred by the Customer in returning the defective Goods to Gypsumtools and, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
- Gypsumtools shall not be liable for Goods’ failure to comply with the warranty set out in Condition 3(a) if: (i) the customer has made any further use of such Goods after giving notice in accordance with Conditions 4(c) or 3(b)(i) (as applicable); or (ii) the defect has arisen due to the Customer failing to follow Gypsumtools’ oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice; or (iii) the defect has arisen as a result of Gypsumtools having followed any drawing, design or Specification as supplied by the Customer; or (iv) the Customer has altered or repaired such Goods without the written consent of Gypsumtools; or (v) the defect has arisen as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working Conditions; or (vi) the Customer has failed to give notice, in writing, to Gypsumtools within the time periods specified in Conditions 4(a), 4(c), or 3(b)(i) (as applicable).
- Gypsumtools shall hold no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in Condition 3(a), except as provided in this Condition 3. (e) Except as set out in these Conditions, all warranties, Conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
- These Conditions shall apply to any repaired or replacement Goods supplied by Gypsumtools.
Inspection of Goods
- Any claims for the non-delivery of Goods are to be communicated to Gypsumtools in writing within 5 Business Days of the relevant invoice that relates to the Goods.
- If Gypsumtools fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Goods of similar description and quality in the cheapest market available, less the price of the Goods. Gypsumtools shall hold no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Gypsumtools with adequate delivery instructions or any other instructions that are relevant to the supply of Goods.
- Within 3 Business Days of receipt of a delivery of the Goods to the Customer, the Customer will visually inspect the Goods to ensure that they are satisfied with the Goods, that the Goods conform with their description and the Specification, and that no damage or loss in transit has occurred to the Goods. Any claims for defects of this nature shall be communicated in writing to Gypsumtools within this 3 Business Day period.
- Any quantities of Goods rejected by the Customer for a reason considered by Condition 4(c) will be returned to Gypsumtools, and subject to Gypsumtools’ acceptance that there is a valid reason for the rejection of those Goods, Gypsumtools will make good any defect by, at its discretion, repairing, replacing or procuring a replacement of the Goods at no expense to the Customer, and Gypsumtools will reimburse to the Customer the cost of returning the Goods. The obligations of Gypsumtools set out in this Condition 4(d) will be the Customer’s sole remedy for rejected Goods and Gypsumtools will not have any further liability in respect to the Goods whether such liability arises by Contract, in tort (including negligence), by statute, common law, or otherwise.
- The Customer shall be deemed to have accepted the Goods on delivery, subject to the Customer’s right to reject the Goods under this Condition 4.
Supply of Services
- (a) Gypsumtools shall supply the Services to the Customer in accordance with the Specification and (where applicable) the Service Level Agreement in all material respects.
- Any performance dates specified in the Service Level Agreement shall be estimates only and time shall not be of the essence for the performance of the Services, but Gypsumtools shall use all reasonable endeavours to meet any performance dates specified.
- Gypsumtools shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Gypsumtools shall notify the Customer in any such event.
- Gypsumtools warrants to the Customer that the Services will be provided using reasonable care and skill.
- Gypsumtools shall ensure that; (i) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Gypsumtools’ reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered in instalments, the outstanding balance of Goods remaining to be delivered; and (ii) if Gypsumtools requires the Customer to return any packaging materials to Gypsumtools, this fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection by Gypsumtools, at such times that Gypsumtools shall reasonably request. Any returns of packaging materials shall be at the expense of Gypsumtools. Returnable cases or stillage’s, separately invoiced, shall be credited in full if returned to Gypsumtools within 28 calendar days of delivery of the Goods, at the expense of the Customer.
- The Goods shall be delivered by Gypsumtools to the location set out in the Order, or to any other locations as the parties may agree (Delivery Location) at any time after the Customer is notified by Gypsumtools that the Goods are ready for delivery. Gypsumtools reserves the right to charge an additional delivery cost where the Delivery Location is not at the Customer’s primary place of business, or if an express delivery is requested.
- On the Goods’ arrival at the delivery location, the delivery of the Goods will be complete.
- It is the responsibility of the Customer to ensure that a person duly authorised to sign on its behalf to acknowledge receipt of the Goods is present at the delivery Location at the time of delivery. Proof of delivery will be a signature upon receipt of the Goods. The Customer shall indemnify and keep indemnified Gypsumtools against all liabilities, costs, expenses, damages and losses suffered or incurred by Gypsumtools arising out of or in connection with any breach by the Customer of its obligations under this Condition 6(d).
- All quoted dates for the delivery of Goods are approximate only, and the time of the delivery is not of the essence. Gypsumtools shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Gypsumtools with adequate delivery instructions or any other instructions that are relevant to the supply of Goods.
- Gypsumtools may deliver Goods in instalments, which will be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not give the Customer any entitlement to cancel any other instalment.
Customer Obligations – The Customer shall:
- As agreed with Gypsumtools, ensure that the Order contains the appropriate product codes and prices, and that the terms of the Order and any information it provides in the Specification are complete and accurate;
- Co-operate with Gypsumtools in all matters relating to the Goods and/or Services;
- Comply with Gypsumtools’ oral or written instructions in regards to the storage, commissioning, installation, use and maintenance of the Goods, or (if there are none) good trade practice;
- Provide reasonable access to the Customer’s premises, office accommodation and other facilities as required by Gypsumtools, to Gypsumtools, its employees, agents, consultants, and subcontractors;
- Provide Gypsumtools with such information and materials as Gypsumtools may reasonably require in order to supply the Goods and/or Services, and ensure that such information is accurate in all material respects;
- Adequately prepare the Customer’s premises for the supply of the Goods and/or Services;
- Before the date on which the Goods and/or Services are to be provided, obtain and maintain all necessary licences, permissions, and consents which may be required;
- Keep and maintain all materials, equipment, documents and other property of Gypsumtools at the Customers’ premises in safe custody at its own risk, maintain Gypsumtools’ materials in good condition until returned to Gypsumtools, and not dispose of or use Gypsumtools’ materials other than in accordance with Gypsumtools’ written instructions or authorisation.
If the Customer prevents or delays, by any act or omission, Gypsumtools’ performance of any of its obligations under the Contract, or if the Customer fails to perform any obligation set out in Condition 7 or other relevant obligation (Customer Default):
- Gypsumtools shall, without limiting its other rights or remedies, have the right to suspend performance of the Contract until the Customer remedies the Customer Default to relieve it from the performance of any of its obligations to the extent that the Customer Default prevents or delays Gypsumtools’ performance of any of its obligations;
- Gypsumtools shall not be liable for any costs or losses sustained or incurred by the Customer arising directly and indirectly from the Customer’s failure or delay to perform any of its obligations as set out in Condition 7; and
- Any costs or losses (including any legal costs and expenses in defending claims brought against Gypsumtools by the Customer or by third parties) sustained or incurred by Gypsumtools arising directly or indirectly from the Customer Default shall be reimbursed to Gypsumtools by the Customer on written demand.
Failure to Deliver Goods Caused by the Customer
If, within 10 working days of Gypsumtools notifying the Customer that the Goods are ready the Customer has failed to take delivery of the Goods, except where such failure or delay is caused by a Force Majeure Event or Gypsumtools’ failure to comply with its obligations under the Contract:
- Delivery of the Goods shall be deemed to have been completed at 9.00am on the 10th Business Day following the day on which Gypsumtools notified the Customer that the Goods were ready; and
- Gypsumtools shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
Prices and Payment
- The price of the Goods and/or Services will be the price set out in the Order. If no price is quoted, the price will be the price which is set out in Gypsumtools’ published pricelist that is in force as of the date of delivery. A large number of Goods is stored in Gypsumtools’ pricelist, and so it is always possible that, despite the best efforts of Gypsumtools, some of the Goods listed in its price list may be incorrectly priced. Gypsumtools will normally verify prices as part of its dispatch procedure to ensure that when a correct price is lower than the stated price, Gypsumtools will charge the lower amount on dispatch of the Goods to the Customer. Where a correct price of the Goods is higher than the price stated in the Gypsumtools price list, Gypsumtools will normally, at its discretion, either contact the Customer for instructions before dispatching the Goods, or reject the Order and notify the Customer of such rejection.
- Gypsumtools may, by giving notice to the Customer, increase the price of the Goods and/or Services to reflect any increase in the cost of the Goods and/or Services at any time before delivery of the Goods or performance of the Services, that is due to: (i) any factor that is beyond the control of Gypsumtools (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (ii) any changes to the Specifications, Service Level Agreement, delivery or performance date(s), quantities or types of Goods and/or Services ordered at the request of the Customer; or (iii) failure of the Customer to give Gypsumtools adequate or accurate information or instructions, or delays caused by any instructions given by the Customer.
- The price of the Goods is exclusive of the costs and charges of packaging, insurance and transportation of the Goods, which will be paid for by the Customer when it pays for the Goods, unless otherwise stated on the Order.
- If the quoted price of the Goods is exclusive of amounts in respect of value added tax (VAT), the Customer shall, on receipt of a valid VAT invoice from Gypsumtools, pay to Gypsumtools such additional amounts in respect of VAT as are chargeable on the supply of Goods.
- The Customer may be invoiced for the Goods and/or Services on or at any time after the completion of delivery of the Goods or performance of the Services by Gypsumtools.
- The Customer shall pay the invoice in full and in cleared funds within 30 calendar days from the end of the calendar month in which the relevant invoice was raised, with the exception of invoices raised in January, which will become due and payable by the 28th day of February. Time of payment is of the essence.
- If the Customer fails to make any payment due to Gypsumtools under the agreed Contract by the due date for payment (due date), then the Customer will pay interest on the overdue amount at the rate of 2% per annum above the Bank of England’s base interest rate, along with paying the overdue amount. Such interest will accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment.
- The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer will not be entitled to assert any credit, set-off or counterclaim against Gypsumtools in order to justify withholding payment of any such amount in whole or in part. At any time, Gypsumtools may, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Gypsumtools to the Customer.
Title and Risk
- On completion of the Delivery, the risk in the Goods shall pass to the Customer.
- Until Gypsumtools has received payment in full (in cash or cleared funds), title to the Goods will not pass to the Customer for; (i) the Goods; and (ii) all other sums which are, or which become due to Gypsumtools for sales of Goods and/or Services to the Customer.
- Until title of the Goods has passed to the Customer, the Customer will; (i) hold the Goods on a fiduciary basis as a Gypsumtools bailee; (ii) store the Goods separately from all other Goods held by the Customer so that they remain easily identifiable as Gypsumtools’ property; (iii) not deface, remove, or obscure any identifying mark or packaging on or relating to the Goods; (iv) keep the Goods insured against all risks for their full price and maintain the Goods in a satisfactory condition from the date of delivery; (v) notify Gypsumtools immediately if it becomes subject to any of the events listed in Condition 13(b); and (vi) give Gypsumtools such information relating to the Goods as Gypsumtools may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.
- If, before the title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in Condition 13(b), or Gypsumtools reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Gypsumtools may have, Gypsumtools may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so within 7 days, recover such Goods by engaging a third party agency or government department to enter any premises of the Customer or of any third party where the Goods may be stored.
Limitation of Liability
- Nothing in these Conditions shall limit or exclude Gypsumtools’ liability for: (i) death or personal injury caused by its negligence, the negligence of its employees, agents or subcontractors (as applicable); (ii) fraud or fraudulent misrepresentation; or (iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or (iv) defective products under the Consumer Protection Act 1987.
- Subject to Condition 12(a); (i) Gypsumtools shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract; and (ii) Gypsumtools’ total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the price of the Goods and/or Services under the Contract.
Customer’s Insolvency or Change of Control
- If the Customer becomes subject to, or Gypsumtools reasonably believes that the Customer is about to become subject to and notifies the Customer accordingly, any of the events listed in Condition 13(b), then, without limiting any other right or remedy available to Gypsumtools, Gypsumtools may suspend or cancel the deliveries of Goods or the performance of Services under the Contract or under any other Contract between the Customer and Gypsumtools without incurring any liability to the Customer, and all outstanding sums in the respect of Goods and/or Services delivered or provided to the Customer will become immediately due.
- For the purposes of Condition 13(a), the relevant events are as follows: (i) the Customer suspends, or threatens to suspend, the payment of its debts, or in the opinion of Gypsumtools, is unable to pay its debts as they fall due, or admits the inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed unable to pay its debts or as having no reasonable prospect of doing so, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom the foregoing apply; or (ii) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or (iii) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned within this Condition 13(b); or (iv) in the opinion of Gypsumtools, the Customer suspends or threatens to suspend, ceases or threatens to carry on all or substantially the whole of its business; or (v) there is a change of control of the Customer (as defined in section 574 of the Capital Allowances Act 2001).
Intellectual Property Rights, Confidentiality and Data Protection
- Gypsum tools shall own all intellectual property rights in or arising out of or in connection with the Contract.
- The Customer acknowledges that, in respect of any third party intellectual property rights, the Customer’s use of any such intellectual property rights is conditional on Gypsumtools obtaining a written licence from the relevant licensor on such terms as will entitle Gypsumtools to license such rights to the Customer.
- All of Gypsumtools’ materials (as defined in Condition 7(g)) are the exclusive property of Gypsumtools.
- A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, Specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its Products and/or Services which the Receiving Party may obtain. The Receiving Party will restrict disclosure of such confidential information to such of its employees, agents or subcontractors to a need to know basis, for the purpose of discharging the Receiving Party’s obligations under the Contract, and will ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
- This Condition 14 will survive termination of the Contract.
Assignment and Subcontracting
- Under the Contract, at any time, Gypsumtools may assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations.
- Without the prior written consent of Gypsumtools, the Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
Import and Exporting Licences
At its own cost, the Customer is responsible for obtaining any such import licences and other consents in relation to the Goods as are required from time to time and, if required by Gypsumtools, the Customer shall make those licences and consents available to Gypsumtools prior to the relevant shipment. It is the obligation of the Customer to acquaint itself and to comply with all applicable requirements and restrictions relating to the possession, use, import and export of the Goods. It is the obligation of the Customer to ensure that no Goods are imported or exported in violation of the laws of any jurisdiction into or through which the Goods are transported during the course of reaching the final Delivery Point. Where it is necessary, at a reasonable time prior to delivery, the Customer will inform Gypsumtools of any documents which it is necessary for Gypsumtools to provide in order to allow the export of the Goods in compliance with the laws of any relevant jurisdiction.
Governing Law and Jurisdiction
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
If any failure or delay to either party performing its obligations under the Contract is caused by a Force Majeure Event, neither party will be liable for the failure or delay. A Force Majeure Event means any event that is beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable. This includes strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or the default of suppliers or subcontractors.
If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent it is required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some parts of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Third Party Rights
No rights under or in connection with the Contract will be given to anyone who is not a party to the Contract.
Only when agreed in writing and signed by Gypsumtools will any variation to the Contract, including the introduction of any additional terms and conditions, be binding.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Condition, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier or fax.
- A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 23(a); if sent by pre-paid 1st class post or recorded delivery, at 9.00am on the 2nd Business Day after posting; if delivered by commercial courier, on the date and at the time that the couriers delivery receipt is signed; or, if sent by fax, one Business Day after transmission.
- The provisions of this Condition 23 will not apply to the service of any proceedings or other documents in any legal action
16 Cyprus Road, Leicester LE2 8QS
UK Company Registration Number 07635823
Registered in England and Wales
Tel: 08456 2 54321
© Gypsumtools Ltd. 2014