1. Interpretation

1.1 In these Conditions the following expressions shall have the following meanings:

Company: means Joseph Giles Limited, a company registered in England and Wales with company number 08409947, whose registered office is at 2 Crompton Fields, Crawley, West Sussex, RH10 9QB, United Kingdom and whose VAT number is 204318546.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 2.7.

Contract: means the contract for the sale of the Goods by the Company to the Customer incorporating these Conditions arising from the Company’s acceptance of the Customer’s order.

Customer: means the person, firm or corporation with whom the Company contracts for the sale of the Goods upon the terms of these Conditions.

Goods: the goods (or any part of them) set out in the Order.

Manufacturer: any manufacturer of the Goods or their components.

Order: the Customer’s order for the Goods, whether made by email, by telephone or in person.

Specification: any specification for the Goods, including any designs, plans, drawings and other data relating to the Goods.

Working Day: means a day other than a Saturday, Sunday or a bank, public or statutory holiday in England when banks in London are open for business.

1.2 In these Conditions, the following rules apply:

1.2.1 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted and includes any subordinate legislation made under it, 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 headings inserted are for ease of reference and shall not affect the construction of the Conditions; and

1.2.4 a reference to writing or written includes emails but not faxes.

2. Basis of contract

2.1 Any quotation or tender given by the Company does not constitute an offer, and is only valid for a period of 90 Days from its date of issue. An Order constitutes an offer by the Customer to purchase Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any Specification submitted by the Customer are complete and accurate.

2.2 The Order shall only be deemed to be accepted when it is accepted in writing by the Company either by issuing (a) a pro-forma invoice if the Customer does not have a credit account; or (b) an Order confirmation if the Customer has a credit account, at which point the Contract shall come into existence.

2.3 These Conditions apply to the Contract to the exclusion of all other terms and conditions that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.4 Any special conditions included in the Company’s quotation or tender to the Customer shall be deemed incorporated into the Contract. If there are any inconsistencies between these Conditions and such special conditions, the special conditions shall prevail.

2.5 Any samples, drawings, descriptive matter or advertising issued by the Company (other than any Specification) and any descriptions of the Goods contained in the Company’s catalogues or brochures or on its 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 or have any contractual force and the Customer acknowledges that the Goods may vary from those samples, drawings, descriptive matter or advertising.

2.6 These Conditions, the Order, the Order confirmation or pro-forma invoice (as the case may be) and any Specification or special conditions pursuant to clause 2.4 shall constitute the whole agreement between the parties relating to the subject matter of the Order and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter. Each party acknowledges that, in entering into a Contract, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Contract or not) (Representation) other than as expressly set out in these Conditions, the Order, the Specification or any special conditions included in the Company’s quotation or tender. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of the Contract. Nothing in this clause shall limit or exclude any liability for fraud.

2.7 No other variation of these Conditions shall have effect unless it is agreed to by the Company in a document signed by an authorised representative of the Company and issued to the Customer.

3. Goods

3.1 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer:

3.1.1 the Customer shall be solely responsible for the completeness and accuracy of the Specification and any measurements provided by the Customer, notwithstanding that the Company may have examined, inspected, studied, or commented to the Customer on the Specification; and

3.1.2 the Customer shall indemnify the Company against all liabilities, actions, proceedings, claims and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the Specification.  This clause 3.1.2 shall survive termination of the Contract.

3.2 The Company reserves the right to amend the specifications of the Goods (including any Specification) if required by any applicable statutory or regulatory requirements.

4. Cancellation of orders

4.1 If the Customer cancels an Order which has been accepted by the Company, the Customer shall reimburse the Company on demand for its loss of profit and all costs, charges and expenses (including costs of labour, tooling and purchase of raw materials) incurred by the Company in respect of the Order up to the date of receipt by the Company of written notification of cancellation.

5. Delivery

5.1 The Company shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of the Goods remaining to be delivered.

5.2 The Company shall:

5.2.1 deliver the Goods at the location set out in the Order or such other location as the parties may agree (Delivery Location); or

5.2.2 deliver the Goods Ex Works by making the Goods available for collection at the Company’s premises or any other premises as advised by the Company from time to time (Pick Up Location).

5.3 If the Customer requests the Company to delay delivery of the Goods and the Company agrees to do so, the Customer shall pay the Company’s reasonable storage charges and the Goods shall be stored at the Customer’s risk from the date upon which the Goods are ready for delivery.

5.4 Delivery is completed on the unloading of the Goods at the Delivery Location (where clause 5.2.1 applies) or on the loading of the Goods at Pick Up Location (where clause 5.2.2 applies).

5.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by any circumstances beyond the Company’s reasonable control or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

5.6 If the Company fails to deliver the Goods, its liability shall be limited to a refund of the price paid for the Goods (if any) and any additional costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by any circumstances beyond its reasonable control or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

5.7 If the Customer fails (a) to take delivery of the Goods on their arrival at the Delivery Location; or (b) to collect the Goods from the Pick Up Location within 3 Working Days of the Company notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by an event beyond the Customer’s reasonable control or the Company’s failure to comply with its obligations under the Contract:

5.7.1 delivery of the Goods shall be deemed to have been completed (a) at the time of their arrival at the Delivery Location; or (b) at 9.00 am on the third Working Day after the day on which the Company notified the Customer that the Goods were ready for collection (as applicable); and

5.7.2 the Company may store the Goods until actual delivery takes place and charge the Customer its reasonable storage charges (including insurance); or

5.7.3 the Company may resell or otherwise dispose of part or all of the Goods, and after deducting reasonable storage charges (including insurance) and selling costs from the price paid by the Customer, (a) refund the balance of the price paid by the Customer for the Goods or (b) charge the Customer for any shortfall below the price of the Goods and any unrecovered storage charges or selling costs.

5.8 If the Company delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.

5.9 The Company may deliver the Goods by installments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an installment shall not entitle the Customer to cancel any other installment.

6. Passing of risk

6.1 The Goods shall be at the risk of the Customer from completion of delivery in accordance with clause 5.2.

7. Breakages, shortages, non-delivery and returns

7.1 Where the Customer collects the Goods from the Pick Up Location, it shall (a) inspect the boxes of Goods before loading them for the purpose of ascertaining that the number delivered is as specified in the Company’s delivery note and whether there is any obvious damage; and (b) inspect the Goods within [5] Working Days from collection from the Pick Up Location for the purpose of ascertaining:

7.1.1 whether the Goods were damaged prior to delivery; and

7.1.2 that the Goods are those specified in the Order and as stated on the Company’s delivery note.

7.2 Where the Goods are delivered to the Delivery Location, the Customer shall inspect the Goods immediately upon delivery for the purpose of ascertaining:

7.2.1 that the number of Goods delivered are as specified in the Company’s delivery note;

7.2.2 whether the Goods have been damaged prior to delivery; and

7.2.3 that the Goods are those specified in the Order and as stated on the Company’s delivery note.

7.3 Any discrepancy between the Goods delivered and those described in the Company’s delivery note or the Order and any damage to the Goods prior to delivery must be notified to the Company in writing within [7] Working Days of delivery of the Goods to the Customer pursuant to clause 7.1 and within 3 Working Days of delivery of the Goods to the Customer pursuant to clause 7.2. In the case of non-delivery of the Goods the Customer must notify the Company in writing within 3 Working Days of the receipt by the Customer of the Company’s delivery note or notified delivery date. Without prejudice to the provisions of clause 6, no claim in respect of non-delivery or damage of the Goods prior to delivery will be entertained by the Company unless the provisions of this clause 7.3 are complied with by the Customer.

7.4 The Company may in its sole discretion accept the return of undamaged/non-defective Goods in exchange for a credit to the Customer’s account, except where:

7.4.1 the Goods have been specially ordered or made for the Customer or to the Customer’s Specification;

7.4.2 the Goods and their packaging are no longer in pristine condition; or

7.4.3 the quantity of Goods to be returned would exceed the Company’s normal stock levels.

7.5 Credit will only be given for Goods if the Company has issued a collection note for the Goods and a delivery note number has been quoted by the Customer.

For further information about Returns please see our Returns Policy.

8. Prices

8.1 The price of the Goods shall be the price set out in the Order, or, if no price is stated, the price as may be agreed between the parties.

8.2 All prices of the Goods are exclusive of value added tax or other applicable sales tax which will be charged at the rate applicable.

8.3 The Company may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the costs that is due to:

8.3.1 any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs, whether the Company’s or the Manufacturer’s);

8.3.2 any requests by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

8.3.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.

8.4 In the case of Goods to be delivered to a Delivery Location, unless expressly stated to the contrary the price of the Goods excludes carriage and packaging, but includes insurance of the Goods until delivery. In the case of Goods to be collected at the Pick Up Location the price of the Goods is ’EX WORKS’ and does not include packaging.

9. Payment

9.1 Unless the Customer has a credit account with the Company the price of the Goods shall be payable with the Order or against pro-forma invoice.

9.2 Where the Customer has a credit account with the Company, payment for the Goods shall be made not later than the last day of the month following the month in which the Company issued its invoice in respect of the sale of the Goods to the Customer unless the Company has agreed in writing to extend additional credit to the Customer. The time stipulated for payment shall be the essence of the Contract.

9.3 Where Goods are delivered by instalments, the Customer shall pay for each instalment in accordance with these Conditions.

9.4 The Customer shall pay all amounts due to the Company under the Contract in full and without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.

9.5 The Company shall be entitled to interest (whether before or after judgement), on any part of the price not paid by its due date from that date until actual payment at the rate of 4% per annum above Barclays Bank plc’s base lending rate prevailing from time to time during such period. Such interest shall accrue on a daily basis.

9.6 The Company may, by notice in writing to the Customer, declare all other sums owing by the Customer to the Company (whether under the Contract or any other Contracts, or on any other account), which at the date of the notice are not immediately due and payable to be immediately due and payable and the Customer shall pay the same to the Company accordingly.

10. Title of the goods

10.1 Title to the Goods shall not pass to the Customer until the earlier of:

10.1.1 receipt by the Company of payment in full (in cash or cleared funds) for the Goods and any other goods that the Company has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; or

10.1.2 resale of the Goods by the Customer, in which case title to the Goods shall pass to the Customer at the time specified in clause 10.4.2.

10.2 Until the title to the Goods has passed to the Customer, the Customer shall:

10.2.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;

10.2.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

10.2.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

10.2.4 notify the Company immediately if it becomes subject to any of the events listed in clause 13.1; and

10.2.5 give the Company such information relating to the Goods as the Company may require from time to time.

10.3 The Company shall be entitled to examine the Goods in storage at any time during normal business hours and upon giving the Customer reasonable notice of its intention to do so and enter any premises owned or occupied or access to which is controlled by the Customer for that purpose.

10.4 Subject to clause 10.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before paying for them. However, if the Customer resells the Goods before that time:

10.4.1 it does so as principal and not as the Company’s agent; and

10.4.2 title to the Goods shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.

10.5 If before the title to the Goods passes to the Customer, the Customer becomes subject to any event listed in clause 13.1 or any sums due from the Customer to the Company have not been paid by the due date for payment, then, without limiting any other right or remedy the Company may have:

10.5.1 the Customer’s right to resell the Goods or use them in the ordinary course of its business shall cease immediately; and

10.5.2 the Company may at any time:

(a) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and

(b) if the Customer fails to do so promptly, enter (or send its agent to enter) any premises owned or occupied or access to which is controlled by the Customer in order to recover the Goods.

10.6 The rights and remedies conferred upon the Company by this clause 10 are in addition to and shall not in any way prejudice, limit or restrict any other rights or remedies of the Company under the Contract.

11. Performance of the goods

11.1 Any figures or statements in the Contract or in any other document supplied by the Company as to the performance or capacity of the Goods are upon the assumption that they will be used in conditions suitable for their proper and effective operation and are only approximate.

11.2 If in the Contract the Company expressly guarantees the accuracy of such figures or statements then, in the event of the Goods after commissioning failing to achieve them, the Company shall be entitled to a reasonable period and to reasonable facilities to enable it to bring the Goods up to the guaranteed figures or statements and the contractual time for delivery of the Goods shall be extended for such reasonable period. If by the Contract the Company undertakes only that the Goods will comply with such figures or statements subject to a margin or tolerance then, in the event of the Goods after commissioning failing to achieve and comply with such undertaking the Company shall be entitled to a reasonable period and to reasonable facilities to bring the Goods up to such figures or statements subject to such margin or tolerance, and the contractual time for delivery of the goods shall be extended for such reasonable period.

11.3 Subject to the provisions of clause 11.1 and clause 11.2 above, all weights, dimensions and other figures or statements as to performance or capacity contained in the Contract or in any other document supplied by the Company before or after the Contract shall be approximate only.

12. Warranty and limitation of liability

12.1 If the Goods are to be supplied in accordance with a Specification supplied by the Customer and provided that the Goods are so supplied, the Company shall not be liable to the Customer in contract or in tort (including breach of statutory duty) if the Goods subsequently prove to be unsuitable for the purpose or purposes for which the Customer required them or prove not to be of satisfactory quality within the meaning of the Sale of Goods Act 1979, to the extent that such unsuitability or unsatisfactory quality is caused by compliance with such Specification.

12.2 Where the Goods supplied or any part thereof are not of the Company’s own manufacture the guarantee below shall not apply but the Company will use all reasonable endeavours to pass on to the Customer the benefit of any guarantee or warranty given by the supplier of such Goods to the Company.

12.3 Subject to clause 12.1, the Joseph Giles Ltd Warranty which can be found in Appendix 1, is appended to these Conditions, applies to the Goods.

12.4 Save where the Customer deals as a consumer (as defined in Section 2 of the Consumer Rights Act 2015), any other condition, warranty, representation or undertaking on the part of the Company as to the quality of the Goods or their fitness or suitability for any particular purpose however and whenever expressed or which may be implied by statute, custom of the trade or otherwise is hereby excluded and the provisions of Sections 13 to 15 inclusive of the Sale of Goods Act 1979 shall not apply to the Contract.

12.5 Nothing in these Conditions shall limit or exclude the Company’s liability for:

12.5.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

12.5.2 fraud or fraudulent misrepresentation;

12.5.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;

12.5.4 defective products under the Consumer Protection Act 1987; or

12.5.5 any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

12.6 Subject to clause 12.5:

12.6.1 the Company 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, loss of business, loss of business opportunity, loss of anticipated savings, loss of goodwill, or any indirect or consequential loss arising under or in connection with the Contract; and

12.6.2 the Company’s total liability to the Customer in respect of property damage resulting from defective Goods, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £50,000; and

12.6.3 the Company’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 an amount equivalent to 20% of the price of the Goods.

13. Suspension of termination of the contract

13.1 Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Customer if:

13.1.1 the Customer commits a material breach of any term of the Contract (including clause 9.2) and (if such a breach is remediable) fails to remedy that breach within 7 days of the Customer being notified in writing to do so; or

13.1.2 any distress or execution is levied upon any of the goods or property of the Customer and is not paid out within 7 days;

13.1.3 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company, limited liability partnership or partnership) is deemed unable to pay its debts within the meaning of section 123 of the IA 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

13.1.4 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

13.1.5 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial party of its business; or

13.1.6 the Customer’s financial position deteriorates to such an extent that in the Company’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

13.2 Without limiting its other rights or remedies, the Company may suspend further performance of the Contract or if the Customer becomes subject to any events listed in clause to clause 13.1.1 to 13.1.6, or the Company reasonably believes that the Customer is about to become subject to any of them. Notwithstanding any such suspension or termination under clause 13.1, the Customer shall pay the Company in accordance with the Contract for all the Goods despatched or notified as ready for collection by the Company prior thereto and shall indemnify the Company against any loss, liability or expense incurred by the Company in connection with the Contract including (without prejudice to the generality of the foregoing) loss or profit, liabilities and expenses in connection with the raw materials and tooling obtained or produced for the purposes of the Contract and the cost of labour and overhead expenses reasonably attributable to the Contract.

13.3 On termination of the Contract for any reason the Customer shall immediately pay the Company all of the Company’s outstanding invoices and interest.

13.4 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 the Contract that existed at or before the date of termination.

13.5 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.

14. Force majeure

14.1 The Company shall not be in breach of this Contract or liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from circumstances beyond the Company’s reasonable control. The Company shall notify the Customer in writing of any such delay or non-performance and if it continues for more than 12 weeks either the Company or the Customer may by notice in writing to the other terminate the Contract. This is without prejudice to the Company’s right to be paid in accordance with the Contract for any part of the Goods which may have been despatched or notified as ready for collection by the Customer prior to the delay or non-performance by the Company and to be reimbursed for all other costs, charges and expenses incurred by the Company pursuant to the Contract up to the date of such notice of termination where it is given by the Company and up to the date of receipt thereof by the Company where it is given by the Customer.

15. Lien

15.1 Without prejudice to clause 10, and to any other remedies of the Company, the Company shall in respect of all unpaid debts due from the Customer have a general lien on all goods and property of the Customer in its possession and shall be entitled on the expiration of 14 days’ notice to the Customer to dispose of such goods and property as it thinks fit and to apply any proceeds towards reduction of such debts.

16. General

16.1 Assignment. The Customer may not assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its obligations under the Contract without the prior written consent of the Company (not to be unreasonably withheld or delayed).

16.2 Waiver. The rights and remedies of the Company in respect of the Contract or in respect of any failure by the Customer to observe or comply with the terms thereof shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Company nor by any failure of or delay by the Company in asserting or exercising any such rights or remedies.

16.3 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.

16.4 Third Parties. No one other than a party to the Contract shall have any right to enforce any of its terms.

16.5 Law and Jurisdiction. 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 all respects in accordance with the law of England and Wales and the parties irrevocably agree to the exclusive jurisdiction of the courts of England and Wales.

16.6 Notices.

16.6.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be: (a) delivered by hand or by pre-paid airmail post at its registered office (if a company) or its principal place of business (in any other case); or (b) sent by email to the email address as advised from time to time.

16.6.2 Any notice or communication shall be deemed to have been received: (a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (b) if sent by pre-paid airmail post, at 9.00 am on the fifth Working Day after posting; or (c) if sent by email, at 9.00 am on the next Working Day after transmission.

16.6.3 This clause does not apply to the service of any proceedings or other documents in any legal action.

Appendix 1 – Joseph Giles Ltd Warranty