1.1 The definitions and rules of interpretation in this condition apply in the Conditions.
"Agreement" the agreement between the Company and the Customer for the purchase of the Goods to which these terms and conditions apply;
"Charges" the total aggregate Goods Price;
"Company" Tropicana Health & Fitness Limited (registered in England and Wales with company number 03477706);
"Company's Premises" Units 38/39 Minworth Industrial Park, Sutton Coldfield, B76 1AH;
"Conditions" these standard terms and conditions of sale and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Company and the Customer;
"Credit Account" where applicable, any account set up, at the Company's discretion, in favour of the Customer on Orders over £100 exclusive of VAT;
"Customer" the person, firm or company who purchases Goods from the Company;
"Customer's Premises" where applicable, the address or addresses for delivery of the Goods notified in writing by the Customer to the Company;
"Goods" any goods agreed to be supplied to the Customer by the Company;
"Goods Price" the total purchase price of the Goods;
"Order" an order by a Customer for the purchase of Goods;
1.2 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
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.
2. ACCEPTANCE OF ORDERS
2.1 A quotation by the Company shall constitute an invitation to treat. All Orders by the Customer for Goods are subject to acceptance by the Company.
2.2 All Goods quoted from stock are quoted subject to the Goods remaining unsold on receipt of the Customer's Order and in any event quotations are for information only and shall not be binding on the Company.
2.3 The Conditions which shall supersede any earlier conditions of the Company shall govern the Agreement to the exclusion of any other terms and conditions including any terms or conditions specified or referred to in any Order placed by the Customer and any terms and conditions of purchase of the Customer. No variation to the Conditions shall be binding unless agreed in writing between the Customer and the Company and signed by a director of the Company.
2.4 The Company's employees and agents are not authorised to make any representations or warranties concerning the Goods unless confirmed by the Company in writing and signed by a director of the Company. In entering into the Agreement, the Customer acknowledges that it does not rely on any such representations or warranties which are not confirmed.
2.5 Any typographical, clerical or other error or omission in any literature, quotation, price list, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.6 The Customer shall be responsible for ensuring the accuracy and sufficiency of any Order.
2.7 The Company shall not be liable for the consequences of any inaccuracy in an Order or specification and will not issue a credit note in respect of an Order and will be entitled to charge the Customer for the costs it incurs by any variations to an Order.
2.8 Any samples supplied by the Customer to the Company in connection with an Order shall be delivered at the Customer's sole risk and expense.
3 SALE OF THE GOODS
3.1 Subject to these Conditions, the Company shall provide the Customer with the Goods.
3.2 The Company shall deliver the Goods, when ready, to the Customer at the Customer's Premises or, if no such address is specified, to any address of the Customer to which correspondence and/or Goods may previously have been addressed or sent. Unless otherwise agreed in writing, delivery shall take place at a time convenient to the Company between the hours of 9.00am and 5.00pm, Monday to Friday inclusive.
3.3 The Company accepts no liability for loss of or damage to Goods in transit unless the Company is notified in writing of the details of the loss or damage within seven working days following despatch of the Goods.
3.4 The Company accepts no liability whatsoever where the Goods are not received (in the case of total loss) unless the Company is notified in writing of the details of the loss within seven working days of the receipt by the Customer of the Company's invoice.
3.5 Any dates quoted for delivery of the Goods are approximate only and the Company shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Company in writing. The Company reserves the right to deliver the Goods in advance of the estimated delivery date.
3.6 If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer's reasonable control or by reason of the Company's fault) then, without prejudice to any other right or remedy available to the Company, the Customer shall indemnify the Company in full against all loss, costs, charges and expenses incurred by the Company as a result of such failure. The price for such Goods shall be due for payment as if the Goods had been delivered at the time specified in the Agreement.
4 RISK AND OWNERSHIP IN GOODS
4.1 The Goods are at the risk of the Customer from the time of delivery.
4.2 Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
4.2.1 the Goods; and
4.2.2 all other sums which are or which become due to the Company from the Customer on any account.
4.3 Until ownership of the Goods has passed to the Customer, the Customer shall:
4.3.1 hold the Goods on a fiduciary basis as the Company's bailee;
4.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company's property;
4.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
4.3.4 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 Customer shall produce the policy of insurance to the Company.
4.4 The Customer's right to possession of the Goods shall terminate immediately if:
4.4.1 the Customer 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 Customer or notice of intention to appoint an administrator is given by the Customer 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 Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
4.4.2 the Customer 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 Agreement or any other contract between the Company and the Customer, 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
4.4.3 the Customer encumbers or in any way charges any of the Goods.
4.5 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.
4.6 The Customer 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 Customer's right to possession has terminated, to recover them.
4.7 Where the Company is unable to determine whether any Goods are the goods in respect of which the Customer's right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.
4.8 On termination of the Agreement, howsoever caused, the Company's (but not the Customer's) rights contained in this condition 4 shall remain in effect.
5.1 Unless otherwise agreed by the Company in writing, the Charges relating to the Goods shall be the price set out in the Company's price list published on the date of delivery.
5.2 The Charges shall be exclusive of any value added tax (VAT).
5.3 All Orders for less than £100.00 (exclusive of VAT) shall be subject to a delivery charge of £5.00 (exclusive of VAT) which shall be payable by the Customer in addition to the Charges. All Orders over £100.00 (exclusive of VAT) shall not to be subject to a delivery charge.
5.4 Unless otherwise agreed by the Company in writing, the Company shall be entitled to invoice the Customer for the Charges and any delivery charge on the date the Goods are dispatched.
5.5 The Customer shall pay the Charges and any delivery charge in pounds sterling by:
5.5.1 cash; or
5.5.2 cheque (represented or dishonoured cheques will incur an additional cost of £4.00); or
5.5.3 credit card provided payment occurs at the same time as the Order is made.
5.6 The Customer shall (unless a Credit Account or alternative arrangement for payment has been agreed with the Customer) pay the Charges and any delivery charge in full within 30 days of the date of the Company's invoice therefore. Time of payment of the Charges and delivery charge shall be of the essence of the Agreement. Receipts for payment will only be issued upon request.
5.7 If the Customer fails to make any payment on the due dates, then the Company shall be entitled, without prejudice to any other right or remedy to:
5.7.1 withdraw any discounts;
5.7.2 charge the Customer compound interest (both before and after judgement) on the amount unpaid at the rate of 2% per month, until payment is made in full;
5.7.3 cancel the Agreement or suspend any further delivery of the Goods to the Customer;
5.7.4 render any Credit Account relating to the Customer on 'stop';
5.7.5 recover any additional costs incurred as a result of bad debts being placed with any outside agency.
5.8 Any liability of the Company under the Agreement shall be subject to and conditional upon the due performance and observance by the Customer of all obligations appearing in the Conditions, and, subject to the Conditions, the Customer shall not be entitled to withhold or delay payment or exercise any right of set off whatsoever and howsoever arising or arisen which might otherwise be available to it.
6.1 Following acceptance by the Company of the Customer's Order, no cancellation and/or suspension, either in whole or in part, may be made by the Customer other than with the prior written consent of the Company and upon terms that the Customer shall indemnify the Company in full against all loss (including without limitation loss of profit, loss of use, loss of production, business interference or increased cost of working or any other special or consequential loss) damages, costs, expenses and other liabilities awarded against or incurred by the Company as a result of or in connection with the cancellation and/or suspension.
6.2 Without prejudice to any other claims or remedies which the Company may have against the Customer the Company may (subject to the provisions of the Consumer Credit Act 1974, if applicable) terminate the Agreement immediately in any one of the following circumstances by written notice:
6.2.1 if the Customer fails to comply with any of the terms of the Agreement including failure to pay any Charges when due; or
6.2.2 if the Customer makes or offers to make any arrangements or composition with creditors or commits any act of bankruptcy, or if a petition in bankruptcy is presented or made against the Customer, or if the Customer is a limited company and any resolution to wind up that company is passed, or if any receiver or administrator is appointed over the whole or any part of such company's assets; or
6.2.3 if the Customer convenes any meeting to discuss any proposal or application for the appointment of an administrator, receiver, liquidator or similar official in respect of the Customer or any of it its assets; or
6.2.4 if the Customer does or allows to be done anything which in the Company's reasonable opinion will or may have the effect of jeopardising the Customer's ability to pay the Charges.
6.3 Upon termination the Customer shall pay on demand all Charges and delivery charges outstanding at the time of termination. In addition, the Customer shall pay to the Company a sum by way of agreed compensation for loss of profit under the Agreement. Both the Company and the Customer acknowledge that the amount will be a genuine pre-estimate of loss suffered by the Company as a result of the termination.
6.4 The Company shall be entitled to require, as a condition of resuming performance under the Agreement, pre-payment of, or such other security as it may stipulate for the payment of any sums due or to become due.
7.1 Except as expressly provided in the Agreement and in particular condition 8 all warranties, statements terms and conditions or undertakings which may be implied by statute, common law, custom of the trade or otherwise are hereby excluded and this condition specifies the entire liability of the Company including liability for negligence.
7.2 The Company does not exclude liability:
7.2.1 for death or personal injury resulting from its negligence or that of its employees;
7.2.2 where a Customer deals as a consumer (as defined in Section 12 of the Unfair Contract Terms Act 1977) for any breach of any obligation implied by statute to use reasonable skill and care in the provision of the Goods;
7.2.3 for direct physical damage to or physical loss of the property of the Customer resulting from the Company's or its employees negligent acts or omissions provided that the Company's liability under this sub-condition shall not exceed in aggregate a sum equal to the total aggregate sums payable by the Customer to the Company under the Agreement and provided further that the Company is notified of any alleged damage or loss within 5 working days of the date such damage or loss occurred (time to be of the essence);
7.2.4 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability;
7.2.5 for fraud or fraudulent misrepresentation.
7.3 Subject to Condition 7.2, the Company will not be liable to the Customer for any:
7.3.1 direct, loss, damage or injury; and/or
7.3.2 indirect, consequential or special loss, damage or injury (including but without limitation) financial loss, loss of profits, loss of business or contracts, loss of operating time or loss of use:
whether foreseeable or not to the Customer or to the Customer's property howsoever, whensoever or wheresoever arising whether by reason of any representation or any implied warranty, condition or other term or duty at common law or under statute or under the express terms of the Agreement (and whether caused by the negligence of the Company or otherwise) or otherwise in respect of or in connection with the provision of the Goods.
7.4 Except to the extent as provided by sub-condition 7.2 the Customer shall indemnify and keep the Company indemnified against any liability (including liability for negligence) no matter when or how arising out of any claim by any third party against the Company in respect of or in connection with the use of the Goods together with all legal and other costs relating to any such claim except that in so far as the claim relates to direct physical damage to or physical loss of property resulting from the negligence of the Company or it's employees, this indemnity shall only apply if and to the extent that the said liability and all costs exceeds the sum for which the Company is liable pursuant to sub-condition 7.2.3.
8.1 The Company shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Company.
8.2 The Company warrants that (subject to the other provisions of these conditions) on delivery, the Goods shall:
8.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
8.2.2 be reasonably fit for any particular purpose for which the Goods are being bought if the Customer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Customer to rely on the skill and judgement of the Company.
8.3 The company shall not be liable for a breach of any warrenty in condition 8.2 unless:
8.3.1 the Customer gives written notice of the defect to the Company, within seven working days of the time when the Customer discovers or ought to have discovered the defect; and
8.3.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company's cost for the examination to take place there.
8.4 The Company shall not be liable for a breach of any warranty in condition 8.2 if:
8.4.1 the Customer makes any further use of such Goods after giving such notice; or
8.4.2 the defect arises because the Customer failed to follow the Company's oral or written instructions as to the storage, installation, use or maintenance of the Goods or (if there are none) good trade practice; or
8.4.3 the Customer alters or repairs such Goods without the written consent of the Company.
8.5 Subject to condition 8.3 and condition 8.4, if any of the Goods do not conform with any of the warranties in condition 8.2 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 Agreement rate provided that, if the Company so requests, the Customer shall, at the Company's expense, return the Goods or the part of such Goods which is defective to the Company.
8.6 If the Company complies with condition 8.5 it shall have no further liability for a breach of any of the warranties in condition 8.2 in respect of such Goods.
8.7 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 12 month period.
9 EXCUSABLE EVENTS
9.1 The Company will not be liable to the Customer for any breach of these Conditions or failure on the Company's part to perform any obligation as a result of act of God, governmental control, restrictions or prohibitions or any other government act or omission whether local or national, act or default of any supplier, agent, sub-contractor or industrial disputes of any kind or any other similar or dissimilar cause beyond the Company's control.
10.1 Any Customer wishing to set up a Credit Account with the Company must provide two satisfactory credit references, the acceptance of which is at the absolute discretion of the Company.
10.2 Without prejudice to the generality of the foregoing, the Company may (in its absolute discretion), even if Goods have been delivered, refrain from notifying the Customer that the Goods are ready for collection until such time as the Customer has tendered the Charges to the Company, together with any outstanding amounts which may be due to the Company on any account whatsoever.
10.3 If the Customer exceeds the credit limit on the Credit Account or fails to comply with the repayment terms of the Credit Account as agreed between the Company and the Customer, the Company shall be entitled to render such Credit Account relating to the Customer on 'stop'.
10.4 The Company reserves the right to withdraw the Credit Account of any Customer at any time.
11.1 The Company may assign the Agreement or any part of it to any person, firm or company.
11.2 The Customer shall not be entitled to assign the Agreement or any part of it without the prior written consent of the Company.
12 THIRD PARTY CLAIMS
12.1 Subject to the right which may accrue to any successor or permitted assignee, nothing in the Agreement shall confer on any third party any benefit or the right to enforce any term of the Agreement, and all third party rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise are hereby excluded to the fullest extent permitted by law.
12.2 Subject to condition 7.2, the Customer shall indemnify the Company in full against any liability whatsoever (including any liability based on the negligence of the Company) which it may incur resulting from any claim made against the Company by any third party, including without limitation any employee or agent of the Customer or any subsequent buyer or hirer or other bailee of the Goods, arising or arisen directly or indirectly out of the performance or any non-performance or breach of the Agreement or otherwise out of or connected with the supply of the Goods.
13.1 These Conditions represent the complete agreement between the Company and the Customer and supersede all representations or other communications between them relating to the subject matter of the Agreement.
13.2 The Customer must promptly advise the Company of any change of address. Any notice hereunder sent by the Company to the Customer shall be deemed to be served within 48 hours of posting. Any notice hereby sent by the Customer to the Company shall only be deemed to have been validly served on the Company if the Company shall have received the same.
13.3 In the event of any of the provisions set out in these Conditions being unenforceable or void for any reason whatsoever each condition (including each sub-condition) shall be deemed to be severable from the remaining conditions and such remaining conditions shall remain in full force and effect.
13.4 The termination of any other agreement with any person, firm or company by which the Customer hires, leases or rents equipment shall not effect the Agreement.
13.5 Failure by the Company at any time to enforce provisions of this Agreement shall not be construed as a waiver of any such provision or in any way effect the validity of the Agreement or any part hereof.
13.6 These Conditions shall be governed and construed in accordance with English Law and the Customer agrees to submit to the non-exclusive jurisdiction of the English Courts.
13.7 Where the Customer is more than one person all of the Customer's obligations under these Conditions shall be joint and several.
13.8 Any person signing an Order on behalf of the Customer warrants to the Company that he is authorised to do so.