1. Interpretation
1.1 Definitions:
“Conditions” the terms and conditions set out in this document as amended from time to time in accordance with clause 11.4.
“Contract” the contract between FO and the Customer for the sale and purchase of the Products in accordance with these Conditions.
“Customer” the person or firm who purchases the Products from FO.
“FO” means the facility owner, Clear Storage Limited, registered in England and Wales with company number 09944164.
“Force Majeure Event” an event or circumstance beyond a party’s reasonable control, including (but not limited to) fire, explosion, storm, flood, earthquake, subsidence, epidemic or pandemic (including, but not limited to, severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) which causes COVID-19, and in each case, any effects arising from or in connection with the same including, but not limited to, any actions, recommendations, announcements or restrictions, related to its subject matter (whether made by a government body, authority, public health organisation or other similar official body)) or other natural disaster, strikes or industrial action by third parties, terrorist attack or threat of such attack, war (whether declared or not) or warlike operations, civil commotion, riot, invasion or failure of public or private power, sewerage or telecommunications conducting media or hardware or software.
“Order” the Customer’s order to purchase the Products, in person at FO’s Site or via an ordering procedure through FO’s website (if applicable), as the case may be.
“Products” the packaging products (or any part of them) set out in the Order.
“Site” means Poplar Way, Rotherwas Industrial Estate, Hereford HR2 6LB.
1.2 Interpretation:
1.2.1 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.2 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.3 a reference to writing or written includes faxes and emails.
2 Basis of contract:
2.1 These Conditions apply to the Contract to the 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.
2.2 The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when FO issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 Any samples, drawings, descriptive matter or advertising produced by FO and any descriptions or illustrations contained on FO’s website or in FO’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the Contract nor have any contractual force.
3 Products:
3.1 The Products are as described on FO’s website, in FO’s catalogue or as communicated to the Customer, from time to time.
3.2 FO reserves the right to amend or change the Products at any time if required by any applicable statutory or regulatory requirements.
4 Collection and delivery:
4.1 The Customer shall collect the Products from FO’s Site, or such other location as may be advised by FO prior to collection (Collection Location) within two days of FO notifying the Customer that the Products are ready.
4.2 Collection is completed on the completion of the Customer collecting the Products at the Collection Location.
4.3 If delivery of the Products are required:
4.3.1 FO shall ensure that each delivery of the Products is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Products (including any applicable code number of the Products) and special storage instructions (if any); and
4.3.2 FO shall deliver the Products to the location set out in the Order or such other location in the UK as the parties may agree (Delivery Location) at any time after FO notifies the Customer that the Products are ready.
4.4 Delivery is completed on the completion of unloading of the Products at the Delivery Location.
4.5 Any dates quoted for collection or delivery are approximate only, and the time of delivery is not of the essence. FO shall not be liable for any delay in making the Products available for collection or delivery of the Products that is caused by a Force Majeure Event or the Customer’s failure to provide FO with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.6 If FO fails to make the Products available for collection and/or fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products. FO shall have no liability for any failure to make the Products available for collection and/or any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide FO with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.7 If the Customer fails to take collection or delivery of the Products within two days of FO notifying the Customer that the Products are ready, then, except where such failure or delay is caused by a Force Majeure Event or FO’s failure to comply with its obligations under the Contract:
4.7.1 Collection or delivery of the Products shall be deemed to have been completed at 9.00 am on the day after the day on which FO notified the Customer that the Products were ready; and
4.7.2 FO shall store the Products until collection or delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.8 If three days after the day on which FO notified the Customer that the Products were ready for collection or delivery the Customer has not taken collection or delivery of them, FO may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Products or charge the Customer for any shortfall below the price of the Products.
4.9 Notwithstanding clauses 4.7 and 4.8 above, if the Customer is a consumer and wishes to exercise its legal right to reject the Products, it must either return them in person to FO or post them back to FO or (if they are not suitable for posting) allow FO to collect them from the Customer. FO will not pay the costs of any postage.
5 Quality:
5.1 FO warrants that on delivery, the Products shall:
5.1.1 conform in all material respects with their description; and
5.1.2 be free from material defects in design, material and workmanship; and
5.1.3 be of satisfactory quality (within the meaning of the Sale of Products Act 1979).
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to FO within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 5.1;
5.2.2 FO is given a reasonable opportunity of examining such Products; and
5.2.3 the Customer (if asked to do so by FO) returns such Products to FO’s place of business at the Customer’s cost,
FO shall, at its option, replace the defective Products or refund the price of the defective Products in full.
5.3 FO shall not be liable for the Products’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Products after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow FO’s oral or written instructions as to the storage or use of the Products or (if there are none) good trade practice regarding the same;
5.3.3 the Customer alters such Products without the written consent of FO;
5.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.5 the Products differ from their description a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, FO shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Products Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any replacement Products supplied by FO.
6 Title and risk:
6.1 The risk in the Products shall pass to the Customer on completion of collection or delivery.
6.2 Title to the Products shall not pass to the Customer until FO receives payment in full (in cash or cleared funds) for the Products, in which case title to the Products shall pass at the time of payment.
6.3 Subject to clause 6.2, the Customer may use the Products before FO receives payment for the Products.
7 Price and payment:
7.1 The price of the Products shall be the price set out in the Order, or, if no price is quoted, the price set out in FO’s published price list in force as at the date of delivery.
7.2 FO may, by giving notice to the Customer at any time before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
7.2.1 any factor beyond FO’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Products ordered; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give FO adequate or accurate information or instructions.
7.3 The price of the Products excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to FO at the prevailing rate, subject to the receipt of a valid VAT invoice.
7.4 FO may invoice the Customer for the Products in advance of collection or delivery.
7.5 The Customer shall pay the invoice in full and in cleared funds on first presentation of the invoice. Payment shall be made by debit / credit card or by bank transfer to the bank account nominated in writing by FO. Time for payment is of the essence.
7.6 If the Customer fails to make any payment due to FO under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above The Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
8 Termination:
8.1 Without limiting its other rights or remedies, FO may terminate this Contract with immediate effect by giving written notice to the Customer if:
8.1.1 the Customer commits a material breach of any term of the Contract; or
8.1.2 the Customer becomes, or is reasonably likely to become, insolvent or bankrupt.
8.2 Without limiting its other rights or remedies, FO may suspend provision of the Products under the Contract or any other contract between the Customer and FO if the Customer becomes subject to any of the events listed in this clause 8, or FO reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.3 Without limiting its other rights or remedies, FO may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
8.4 On termination of the Contract for any reason the Customer shall immediately pay to FO all of FO’s outstanding unpaid invoices and interest.
8.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9 Limitation of liability:
9.1 Nothing in these Conditions shall limit or exclude FO’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of the terms implied by section 12 of the Sale of Products Act 1979; or
9.1.4 defective products under the Consumer Protection Act 1987; or
9.1.5 any matter in respect of which it would be unlawful for FO to exclude or restrict liability.
9.2 Subject to clause 9.1:
9.2.1 FO shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss (except where the Customer is a consumer) arising under or in connection with the Contract; and
9.2.2 FO’s 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 in no circumstances exceed the price paid or payable for the Products.
9.2.3 Extended rights for consumers. The Consumer Rights Act 2015 says goods must be as described, fit for purpose and of satisfactory quality. During the expected lifespan of the Products consumer legal rights entitle the consumer Customer to the following:
9.2.3.1 Up to 30 days: if the Products are faulty, then the Customer can receive an immediate refund;
9.2.3.2 Up to 6 months: if the Products cannot be repaired or replaced, then the consumer Customer will be entitled to a full refund, in most cases;
9.2.3.3 Up to 6 years: if the Products do not last for a reasonable length of time the consumer Customer may be entitled to a partial refund of money.
9.2.3.4 This clause 9 shall survive termination of the Contract.
10 Force majeure:
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 12 weeks, the party not affected may terminate this Contract by giving 1 day’s written notice to the affected party.
11 General:
11.1 Assignment and other dealings.
11.1.1 FO may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.2 Entire agreement.
11.2.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.2.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
11.3 Data Protection.
11.3.1 Both parties will comply with all applicable data protection and privacy legislation in force from time to time in the UK including: the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
11.3.2 This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
11.3.3 FO will process the Customer’s personal data in accordance with its Privacy Policy, a copy of which is available at: https://clearstoragehereford.co.uk/privacy-policy/.
11.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.5 Waiver. 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.7 Notices.
11.7.1 Notices to be given by FO or the Customer must be in writing and must either be delivered by hand or sent by pre-paid post. FO may also give Notice to the Customer by SMS or email if the Customer has elected to receive correspondence this way. Notices shall be deemed received at the time of delivery by hand, one hour after sending by email or SMS or 48 hours after posting. Notices from FO to the Customer will be sent to the address on the cover sheet or the most recent address in England notified to FO.
11.7.2 In the event of not being able to contact the Customer at the last notified address or other contact including SMS or email, Notice is deemed to have been given to the Customer if FO serves that Notice on an alternative contact and authorized person (ACP) specified by the Customer at the last notified address or other contact including SMS or email of the ACP. Any notice from the Customer must be sent to the FO at the address specified. In the event that there is more than one Customer, Notice to or by any single Customer is agreed to be sufficient for the purposes of any Notice requirement under this Contract.
11.8 Third party rights. No one other than a party to this Contract shall have any right to enforce any of its terms.
11.9 Governing law and Jurisdiction. The Contract shall be governed by English law and any dispute or claim that either party brings will be decided by the Courts of England and Wales.