Terms and Conditions of Sale
To be used in conjunction with the agreed Supplementary Terms & Conditions listed below.
1.1 The definitions and rules of interpretation in this clause apply in these conditions.
“Buyer” [any buyer authorised to use this website and for whom Supplementary Terms have been agreed by the Company]
“Company” GB Eye Limited registered in England under company number 2703490 whose registered office is at Ellin House 42 Kingfield Road Sheffield South Yorkshire S11 9AS
“Contract” means any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these conditions and any Supplementary Terms or Consignment Sales agreement.
“Delivery Point” means the place where delivery of the Goods is to take place under condition 4;
“Goods” means any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
2 APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions and any Supplementary Terms or Consignment Sales agreement
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until an acknowledgement of order is issued by the Company (which may be by email) or (if earlier) the Company delivers the Goods to the Buyer.
2.6 The Buyer shall ensure that the terms of its order are complete and accurate.
3.1 The quantity and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues, brochures or website are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company’s place of business.
4.2 The Buyer shall take delivery of the Goods within 60 days of the Company giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.4 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.5.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
4.5.2 the Goods shall be deemed to have been delivered;
4.5.3 the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); and
4.5.4 the Company may sell the Goods at the best price readily obtainable and (after deducting all reasonable storage 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..
4.6 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
4.7 If the Company delivers to the Buyer a quantity of Goods of up to 7.5% more or less than the quantity accepted by the Company, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.8 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within 10 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 The Goods are (subject to clause 4.5) at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
6.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
6.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
6.4.2 any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
6.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
6.5.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
6.5.3 the Buyer encumbers or in any way charges any of the Goods.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.9 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.
7.1 Unless otherwise agreed by the Company in writing or in a quotation which remains valid, the price for the Goods shall be the price set out
7.2 Unless otherwise agreed by the Company in writing or in a quotation which remains valid, the price for the Goods is exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, transport, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
7.3 The Company reserves the right, by giving notice (which may be by email) to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost 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 Company adequate information or instructions.
8.1 Subject to condition 8.4, payment of the price for the Goods is due as set out above or as advised to the Buyer in writing (including email) by the Company.
8.2 Payment of the price for the Goods is due in pounds sterling (unless otherwise agreed) and time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.5 Any credit limit applicable to the Buyer will be agreed with the appropriate GB eye Ltd Account Manager
8.6 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.7 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of National Westminster Bank PLC, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
9.2 The Company warrants that (subject to the other provisions of these conditions) the Goods shall correspond with their specification at the time of delivery and that on delivery, and for a period of 3 months from the date of delivery, the Goods shall:
9.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
9.2.2 be free from defects in materials or workmanship
9.3 The Company shall not be liable for a breach of the warranty in condition 9.2 unless:
9.3.1 the Buyer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within 10 working days of the time when the Buyer discovers or ought to have discovered the defect; and
9.3.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business.
9.4 The Company shall not be liable for a breach of any of the warranties in condition 9.2 if:
9.4.1 the Buyer makes any further use of such Goods after giving such notice; or
9.4.2 the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
9.4.3 the defect arises from any drawing design or specification supplied by the Buyer; or;
9.4.4 the defect arises from fair wear and tear, wilful damage, or negligence, or the Buyer alters or repairs the Goods without the written consent of the Company.
9.5 Subject to condition 9.3 and condition 9.4, if any of the Goods do not conform with any of the warranties in condition 9.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall return the Goods or the part of such Goods which is defective to the Company.
9.6 If the Company complies with condition 9.5 it shall have no further liability for a breach of any of the warranties in condition 9.2 in respect of such Goods.
10 INDEMNITY AND LIMITATION OF LIABILITY
10.1 Subject to condition 4, condition 5 and condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
10.1.1 any breach of these conditions;
10.1.2 any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
10.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these conditions excludes or limits the liability of the Company:
10.3.1 for death or personal injury caused by the Company’s negligence; or
10.3.2 under section 2(3), Consumer Protection Act 1987; or
10.3.3 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
10.3.4 for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.2 and condition 10.3 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract (including any indirect or consequential losses) shall be limited to the Contract price.
10.5 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of any drawing, design or specification supplied by the Buyer, the Company shall indemnify the Buyer against all loss damages, costs and expanses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim provided that:
10.6 The Company is given full control of any proceedings or negotiations in connection with any such claim;
10.7 The Buyer shall give the Company all reasonable assistance for the purposes of any such proceedings or negotiations;
10.8 Except pursuant to the final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Company (which consent shall not be unreasonably withheld);
10.9 The Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
10.10 The Company shall be entitled to the benefit of, and the Buyer shall accordingly account to the Company for, all damages and costs (is any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
10.11 Without prejudice to any duty of the Buyer at common law, the Company shall be entitled to require the Buyer to take such steps as the Company may reasonably require mitigating or reducing any such loss, damages, costs or expenses for which the Company is liable to indemnify the Buyer under this condition.
11 LOAN OF DISPLAY EQUIPMENT
11.1 If any display equipment is provided on loan by the Company for the Goods and is only to be used to display the Company’s Goods unless prior written consent of the Company is given. Should any products other than the Company’s Goods be displayed in such equipment the Buyer will pay to the Company 50% of the cost of such display equipment.
11.2 If the Buyer agrees to take display equipment into their premises for display of Goods it agrees to keep the display equipment in situ, with products on display, for a minimum of 12 months. If the Buyer wishes to remove the display equipment at any time without allowing a sell-through period of two months the Buyer will pay to the Company 50% of the cost of the display equipment.
11.3 If at any time after the initial 12 month period, the Buyer no longer requires the display equipment, on written request from the Buyer, the Company will arrange for removal of such display equipment, at the cost of the Buyer, provided that such display equipment is suitably packaged and ready for collection by the Company at a time agreed upon. The Buyer must have written authorisation from the Company before disposal of unwanted display equipment takes place. The disposal must be in accordance with the appropriate environmental requirements.
12 FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
13.1 In these conditions “Incoterms” means the international rules for the interpretation of terms of the International chamber of commerce as in force at the date when the contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in this condition14, but if there is any conflict between the provisions of Incoterms and these conditions, the latter shall prevail.
13.2 Where the Goods are supplied for export from the UK, the provisions of this clause 14 shall (subject to any special terms agreed in writing between the Buyer and the Company) apply notwithstanding any other provision of these conditions.
13.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
13.4 Unless otherwise agreed in writing (or email) between the Buyer and the Company, the Goods shall be delivered ex-works and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979
13.5 The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment or in respect of any damage during transit.
13.6 Payment of all amounts due to the Company shall (if required by the Company) be made by irrevocable letter of credit opened by the Buyer in favour of the Company and confirmed by a bank acceptable to the Company.
14 INSOLVENCY OF BUYER
14.1 This condition applies if:
14.1.1 the Buyer becomes bankrupt (being an individual or a firm) or makes any voluntary arrangement with its creditors or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
14.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
14.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
14.1.4 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
14.2 If this condition applies then, without prejudice to any other right or remedy available to the Company, the Company 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 the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
15.1 The Company may assign the Contract or any part of it to any person, firm or company.
15.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
15.3 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
15.4 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
15.5 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
15.6 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
15.7 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
15.8 This 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 submit to the exclusive jurisdiction of the English courts.
16.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:
16.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
16.1.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
16.2 Communications shall be deemed to have been received:
16.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
16.2.2 if delivered by hand, on the day of delivery; or
16.2.3 if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
16.3 Communications addressed to the Company shall be marked for the attention of the sales director.
16.4 Where specifically mentioned in the conditions notices to be given under these conditions may be given by electronic mail and any notices sent to the Company will be deemed to be received 24 hours after receipt by the Company at the relevant email address. The Company may send such email notices to the Buyer via the email address provided by the Buyer and any notices will be deemed to be received at the time that the Company sends the email whether or not the Buyer receives the email
Supplementary Terms and Conditions of Sale
These Supplementary Terms & Conditions are to be used in conjunction with the Company’s main Terms Conditions, which can be found above
“Buyer” (and “you” or “your” refers to the Customer)
“Company” GB Eye Limited registered in England under company number 2703490 whose registered office is at Ellin House 42 Kingfield Road, Sheffield, South Yorkshire S11 9AS
SUPPLY OF GOODS ON CONSIGNMENT
Whenever we refer to a consignment basis for stock what is meant and understood by us and the Buyer is: The Buyer will be charged for goods that are sold to end customers. Goods are the Buyer’s to sell at that point. The Buyer will also ensure the goods are fully covered by insurance and kept safe up to that point.
Up to the point immediately before sale to an end customer, actual ownership of the goods remains with GB eye Ltd. So in addition to any other right GB eye may have, we may at any time require the Buyer to deliver up those goods (plus any racking we have supplied for your convenience – which always remains our property) and if you do not, then we may come onto your premises (or wherever the relevant goods/racking are stored in order to recover them.
GB eye organise the supply of goods to each of the Buyer’s stores (where agreed with the Buyer) and shall periodically restock goods, remove and replace obsolete stock or slow moving goods. Goods will only be removed from sale following authorisation from GB eye and with the Buyer’s approval. The removed goods will be destroyed by the Buyer in accordance with GB eye’s obsolete stock policy.
In the event that display equipment is provided by the Company for posters, and any posters supplied prove (as agreed by the Buyer and the Company) to be slow-moving or inappropriate, then the Company may at its discretion (and albeit that all Goods are supplied on a firm sale basis) provide alternative posters of a similar format by way of exchange and accept the return of the other posters on the following basis:
All returns must be authorised by your assigned GB eye agent. If a GB eye agent isn’t assigned to your account the associated poster corners must be batched together. Notification in writing must also be given showing full details of what is being returned using the company’s ‘Obsolete Stock Returns Form’. This must be within 14 days of any agreement by the Company to accept them for return and exchange.
Risk in and ownership of the Goods remains with the Buyer until the Goods accepted for return have been received by the Company.”