1. Definition and Contract
- In these Conditions of Sale 'BPW' means BPW Limited; the 'Customer' means the company, individual or other entity purchasing the Goods hereunder and the 'Goods' means any goods or other items sold by BPW to the Customer, the 'Order' means the order form or other document which incorporates these Conditions of Sale.
- All sales of Goods by BPW are subject to these Conditions of Sale save as varied by written document signed by a director of BPW. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable specification submitted by the Customer are complete and accurate. An offer made by the Customer with BPW shall be deemed acceptance of these Conditions. The Order shall only be deemed to be accepted when BPW issues an order acknowledgment ('Order Acknowledgment'), at which point and on which date the contract shall come into existence, thereby forming the 'Contract'. Unless otherwise stated any quotation for the Goods given by BPW shall not constitute an offer. A quotation shall only be valid for a period of for thirty days from the date of issue unless previously withdrawn.
2. DELIVERY
- Dates of delivery are estimated dates only. BPW shall endeavour to comply with such estimated delivery dates, but the Customer shall not be entitled to cancel a Contract on the basis of failure to meet such delivery dates. BPW shall be entitled to make delivery of part only of any Goods ordered and to receive payment therefor.
- No Contract may be cancelled by the Customer without the consent in writing of BPW. If BPW shall consent to such cancellation or if the Contract shall otherwise be terminated (except solely, as a result of breach by BPW) then the Customer shall, without prejudice to any other rights which BPW may have, pay to BPW all of the Supplier's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt. In the event of cancellation or if the Contract shall otherwise be terminated the Customer shall, without prejudice to any other rights and remedies, pay to BPW its irrecoverable losses incurred up to the date of termination.
- Where BPW requires the Customer to return any packaging materials to BPW (as set out in the delivery note), the Customer shall make any such packaging materials available for collection at such times as BPW shall reasonably request.
3. PRICE
The following terms shall (unless otherwise agreed in writing) apply to any prices agreed as set out in the Order Acknowledgment for Goods supplied hereunder:
- Prices do not include value added tax or other taxes or duties.
- Any additional cost to BPW of performing the Contract arising out of the making, passing or amendment of any law, order, regulation, byelaw or similar matter coming into effect after the date of the tender or offer shall be invoiced by BPW to the Customer and payable as an addition to the agreed price (and the Customer shall not be entitled to cancel or otherwise terminate the Contract on account thereof).
- Prices are ex-works and do not include delivery save where the Order otherwise provides.
- BPW shall be entitled to invoice and be paid in addition to the contract price a sum in respect of any variation in the Order or the specifications requested by the Customer after the date of the Order Acknowledgement.
- BPW may adjust the invoice price of the Goods to reflect any increase in the cost of the Goods that is due to any factor beyond BPW's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs). BPW may further adjust the invoice price where the Customer fails to return any packaging materials to in accordance with sub-clause 2.3 at the cost of replacement for such packaging materials. BPW shall give the Customer not less than 14 days' prior notice in writing of any changes. The Customer shall pay to BPW sums in respect of storage, insurance or demurrage by reason of failure of the Customer, including but not limited to where the Customer delays in providing instructions to BPW, or where the Customer fails to or delays in making payment for Goods, and in any such case storage shall be undertaken by BPW at the sole risk of the Customer and BPW shall be entitled but not obliged to insure the Goods.
4. TERMS OF PAYMENT
- Unless otherwise agreed in writing by BPW, the Customer shall make the payment in full (and without deduction for any reason whatsoever) and payment shall be made within the time period as set out in the Order Acknowledgment and time shall be of the essence for payment. Payment shall be made either in British pounds sterling at BPW's offices, or via direct bank payment to a bank account (either as detailed on the invoice or as otherwise instructed by BPW).
- Any sum overdue for payment from the Customer to BPW (whether under this Contract or otherwise) shall bear interest at the rate of 5% over the current base rate of Barclays Bank Plc from time to time for the period during which the sum remains unpaid (whether before or after judgement in a court of law).
5. TITLE AND RISK
- Risk in the Goods sold hereunder shall pass to the Customer on delivery save that if the Customer wrongly refuses or delays in taking or accepting delivery then risk shall pass to the Customer on the date upon which delivery should reasonably have taken place.
- Title to the Goods shall remain with BPW and shall not pass to the Customer until either payment of the price of the Goods and all other sums due at that time from the Customer have been made in full (in cash or cleared funds via bank transfer) to BPW (whether under the Contract or otherwise), or in the case of Goods supplied for re-sale, (in which event the Customer shall do so as a principal and not an agent of BPW) title to the Goods shall pass to the Customer immediately prior to the Customer re-selling the Goods to any third party
- Until the Customer has acquired title to the Goods, the Customer shall be in possession of the Goods as bailee and fiduciary agent for BPW and shall store, protect, maintain, and insure the Goods and identify the same as the property of BPW and keep them separate from all other goods of the Customer or any third party.
- Until the Customer has acquired title to the Goods the Customer shall not (save as expressly provided otherwise) use, sell, lease, charge or transfer the Goods (or any part thereof) to any third party nor grant any third party any interest whatsoever in the Goods. The Customer shall be entitled (subject to sub-clause 5.5) to use or sell the Goods in the normal course of the Customer's business. Until title in the Goods has passed to the Customer, BPW may at any time demand delivery up of the Goods in the Customer's possession that have not been resold (subject to sub-clause 5.5) and shall be entitled to enter any premises of the Customer or any third party where the Goods are stored in order to repossess the Goods and to disconnect or dismantle any motor vehicle, plant or other item of machinery in order to remove the goods intact therefrom. BPW shall not be liable for any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of or damage to goodwill, waste of staff time or indirect or consequential loss of any sort whatsoever and howsoever caused arising out of the dismantling of any motor vehicle, plant or other item of machinery.
- If the Customer shall sell or otherwise deal with the Goods, then the full amount of any proceeds thereof (or the right to recover the full amount of any proceeds thereof) and the proceeds of any insurance claim in respect of the Goods shall be held by the Customer as trustee for BPW. The Customer shall pay any such proceeds into a separate bank account designated for the purpose.
- Any of the Customer's property which is delivered to BPW shall be at the risk of the Customer as regards accidental damage occurring to such property whilst in the possession of BPW.
6. WARRANTY AND PERFORMANCE
- If and only if the Customer has made payment in full to BPW, BPW warrants the Goods (save for Goods manufactured to the Customer's specification or otherwise than to the specification of BPW or the manufacturers of such Goods) to be free from material defects caused by faulty design or materials or poor workmanship where such defect becomes apparent within a period of one year from delivery thereof PROVIDED THAT:
- the Customer gives written notice to BPW immediately where any material defect becomes apparent with full details thereof and the Customer immediately suspends use of such Goods; and
- examination of the items by BPW shall disclose to its satisfaction that such material defects exist and were caused by faulty design or materials or poor workmanship; and
- the liability of BPW for any material defects shall be limited to the replacement of the defective Goods or any defective part and re-delivery (free of charge) of the same to the Customer; and
- this warranty is contingent on proper use of the Goods in the application intended and upon proper storage, installation and maintenance as directed by BPW's and/or the manufacturer's instructions and manuals and this warranty does not apply to any Goods, which have been modified by the Customer, or subjected to unusual process or physical stress or which has had the original identification marks removed or altered; and
- the Customer shall pay BPW the cost of any test and transport of items in respect of which BPW does not accept any liability hereunder.
- BPW shall not be liable for failure of the Goods to meet any specification or any British or other standard unless BPW shall have previously expressly guaranteed attainment of the same in writing.
- Any advice or recommendation made by BPW or its employees or agents as to the storage, use or application for the Goods shall not be binding upon BPW unless contained in the official technical data published by BPW.
- The Customer should rely upon manufacturers' instructions for all instructions and advice. The Customer must satisfy itself that the Goods are suitable for the purpose and application for which they are purchased and BPW gives no warranty that the Goods are suitable for any particular purpose or application or that they meet any other specification or requirement.
- BPW reserves the right to deliver Goods of a different specification to that ordered if the differences in the specification do not adversely affect the quality of the Goods to any significant degree.
- Subject as expressly provided in these Conditions of Sale all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
7. DEFAULT
If the Customer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy or if any petition or receiving order in bankruptcy shall be presented or made against the Customer or, if the Customer being a limited company, any resolution or petition to wind-up the Customer (other than for the purpose of reconstruction or amalgamation) or for an administration order in respect of the Customer shall be passed or presented or if a receiver of the property undertaking or assets (or any part thereof) of the Customer shall be appointed, or if the Customer shall commit any breach of its obligations under these Conditions of Sale, then, and in any such case BPW may immediately (and without prejudice to any other right or remedy of BPW).
- suspend or terminate the Contract or any unfulfilled part of the Contract;
- stop any Goods in transit; and
- recover any Goods from the Customer title to which has not passed to the Customer
8. LIABILITY AND INDEMNITY
- BPW shall not be liable for any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of or damage to goodwill, waste of staff time or indirect or consequential loss of any sort whatsoever and howsoever caused.
- BPW shall not be liable for damages for delay in delivery of Goods, including but not limited to losses which the Customer may directly or indirectly suffer as a result of any delay in delivery unless a written indication as to the estimated delivery date was provided by BPW to the Customer at the time of the Order and delay in delivery is caused wholly by the negligence of BPW and continues for 28 days after written notice given by the Customer to BPW, such notice to be given at any time after the estimated delivery date.
- Save as expressly provided otherwise, BPW's total liability to the Customer in respect of any defective Goods supplied hereunder (where the Customer provides notices of any defects in accordance with sub-clause 6.1) shall be limited to the value of the defective Goods (such as to be deemed to be the sale price of the items from BPW to the Customer) and for all other claims the value of the Goods supplied under the applicable Order. In the case of any claim being accepted by BPW which claim is based upon the quality, condition or specification of the Goods BPW may at its option replace the defective Goods in full and final satisfaction of such claim.
- BPW shall not be liable for any short delivery of the Goods unless the Customer shall have given to BPW written notice of such short delivery within 7 days of the date of delivery of such goods (time being of the essence for the purposes of this sub-clause). In the case of short delivery constituting damage in transit this must be indicated on the delivery note.
- BPW shall not be responsible for non-performance in whole or in part of its obligations nor under any liability to the Customer if such non-performance or liability is due to any cause beyond the control of BPW including, without limitation, act of God, war, threat of war or preparation for war, insurrection, riot, civil commotion, civil war, terrorist attack, government regulation, imposition of sanctions, embargo, explosion, strike, labour dispute, illness, pandemic, epidemic, flood, fire, storm, drought, earthquake, or any other natural disaster, power loss, mechanical breakdown of manufacturing plant, collapse of building, machinery or equipment or failure of subcontractors or manufacturers to honour their obligations to BPW.
- The Customer shall indemnify and keep indemnified BPW against any claim made by any third party against BPW arising out of or related to the Goods or the other obligations of BPW hereunder including where the Customer fails to adhere with the proper storage, installation and maintenance requirements as directed by BPW's and/or the manufacturer's instructions manuals and including where the Goods have been modified by the Customer (except for any claim which arises due to any breach or other default by BPW under the Contract).
- The provisions of this clause shall continue in effect notwithstanding the termination, completion or any other matter which might otherwise cause the Contract to become ineffective.
- The provisions of this clause shall operate to protect every employee, officer, representative, contractor, advisor, agent, and subcontractor of BPW who have a right to enforce the provisions of this clause 8, and BPW shall be deemed to be trustee for itself and such employees, officers, representatives, contractors, advisors, agents, and subcontractors so as to make them parties to the Contract for the purposes of this clause only.
- Subject to clause 8 above, this Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this sub-clause 8.10, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision. The provisions of this clause 8 shall remain in full force and effect on or after termination of this agreement.
- Nothing in these Conditions of Sale shall limit any liability which cannot legally be limited, including liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation or any breach of the terms implied by section 12 of the Sale of Goods Act 1979.
9. MISCELLANEOUS
- All pre-contract representations including (but not limited to) catalogues and advertising material (unless specifically incorporated into the Contract by the Order Acknowledgement) made by or on behalf of BPW are excluded from the Contract and the Customer warrants that no reliance has been placed upon them in entering into this Contract.
- Where the Customer consists of more than one person or company then their liability hereunder shall be joint and several.
- In construing these Conditions of Sale, the clause headings shall be ignored.
- No Russia and Belarus clause:
- The Customer shall not sell, export or re-export, directly or indirectly, to the Russian Federation, or for use in the Russian Federation, any goods supplied under or in connection with the Contract that fall under the scope of Article 12g of Council Regulation (EU) No 833/2014 (Restricted Goods);
- The Customer shall not sell, export or re-export, directly or indirectly, to Belarus, or for use in Belarus, any goods supplied under or in connection with the Contract that are listed in Annexes XVI, XVII and XXVIII, and goods of common high priority as listed in Annex XXX of Article 8g of Council Regulation (EU) 2024/1865 amending Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus.
- The Customer shall undertake its best efforts to ensure that the purpose of sub-clauses 9.4.1, 9.4.2 and 9.4.3 is not frustrated by any third parties further down the commercial chain, including by possible resellers.
- The Customer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of clause 9.4.1, 9.4.2 and 9.4.3.
- Any violation of sub-clauses 9.4.1, 9.4.2, 9.4.3 and 9.4.4 shall constitute a material breach of an essential element of this Contract and BPW shall be entitled to seek appropriate remedies, including, but not limited to the termination of the Contract.
- The Customer shall immediately inform BPW about any problems in applying sub-clauses 9.4.1, 9.4.2, 9.4.3 and 9.4.4, including any relevant activities by third parties that could frustrate the purpose of clause 9.4.1 and 9.4.2. The Customer shall make available to BPW information concerning compliance with the obligations under sub-clauses 9.4.1, 9.4.2, 9.4.3 and 9.4.4 within two weeks of the simple request of such information.
10. LAW
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.