Terms and Conditions of Waterline Limited
These Conditions together with the Company’s Order Confirmation will govern continuing business in relation to the Contract between the Parties. Where there is any inconsistency between the provisions hereof and the Order Confirmation, the provisions of the Order Confirmation will take precedence.
- In these Conditions:-
‘Buyer’ means the person, firm or company so described in the Order who purchases Goods from the Company;
‘Company’ shall mean Waterline Limited (Company No: 0428931) whose registered office is at Crown House, North Crawley Road, Newport Pagnell, MK16 9TG;
‘Conditions’ mean the standard terms and conditions of sale set out here including (unless the context otherwise requires) any special terms and conditions agreed in Writing between the Parties;
‘Confidential Information’ means this Contract and all information obtained by one party from the other pursuant to this Contract which is marked, or ought reasonably to be regarded as confidential;
‘Contract’ means a contract for the sale and purchase of Goods;
‘Delivery Address’ means the designated delivery address set out by the Buyer in its Account Application Form;
‘Goods’ means all products, articles, materials and components including any installments or any constituent parts of which the goods are comprised as further described in the Order;
‘Intellectual Property’ means trade marks (whether registered or unregistered), logos, trade names, unregistered and registered designs, copyright, database rights, rights in computer software, domain names, rights in confidential information and any and all other intellectual property rights (whether now subsisting or in the future created) both in the UK and all other countries of the world for the full period of those rights (including any extensions and renewals);
‘Order’ means the Buyer’s purchase order setting out the Buyer’s offer to purchase Goods subject to these Conditions;
‘Order Confirmation’ means the Company’s issuance to the Buyer of an acknowledgement in Writing of an Order;
‘Parties’ means the Buyer and the Company;
‘Price’ means the price of the Goods as defined at Condition 3.2;
‘Third Party Intellectual Property’ means any and all Intellectual Property licensed to the Company by a third party in connection with the Goods;
‘Writing’ includes e-mail, facsimile transmission and comparable means of communication.
- 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.
- The headings in these Conditions are for convenience only and shall not affect their interpretation.
- Words of any one gender include the other gender and may be used interchangeably and words denoting natural persons include corporations and firms and all such words are to be construed interchangeably.
- References to “including” and “include” shall be deemed to mean respectively “including without limitation” and “include without limitation”.
- An Order constitutes an offer by the Buyer to purchase the Goods from the Company subject to these Conditions. No Order placed by the Buyer shall be deemed to be accepted by the Company until the Company issues an Order Confirmation or, if earlier, the Company delivers the Goods.
- All Orders are subject to these Conditions unless otherwise agreed by a director of the Company in writing. No terms or conditions forward by the Buyer, nor verbal representations, warranties, guarantees or other statements made by or on behalf of the Company, shall be binding on the Company unless confirmed by a director of the Company in writing (except that neither of the Parties seeks to exclude liability for any fraudulent pre-contractual misrepresentation upon which the other party can be shown to have relied).
- Notwithstanding acceptance of an Order by the Company pursuant to Condition 2.1, the Company can give no warranty or undertaking that the Goods are available and reserves the right to cancel an Order if it should be unable to effect an Order within a reasonable period of time for any reason beyond its control and in such a case the Company shall not be liable to compensate the Buyer.
- Quotations & Published Prices:
- Any quotation or published price provided by the Company is subject to alteration or withdrawal without prior notice as a result of fluctuations in exchange rates or labour, materials, transport or other costs beyond the control of the Company, so that the Company has the right to adjust its prices to those prevailing at the time of despatch.
- The Price of the Goods shall be as stated in the Order Confirmation and, unless otherwise stated in the Order Confirmation, shall be:
(a) exclusive of VAT (which shall be payable by the Buyer subject to receipt of a VAT invoice); and
(b) inclusive of packaging, packing, shipping, carriage, insurance and delivery of the Goods to the Delivery Address and any duties, imposts or levies other than VAT.
- The quantity, quality and description of the Goods shall, subject to these Conditions, be as specified in the Order Confirmation and/or the current edition of the Company’s Blue Book or other sales or marketing literature as published from time to time (copies of which are available from the Company on request) and/or in any other applicable specification listed or set out with the Order Confirmation and accepted by the Company in Writing by one of the Company’s authorised representatives in Writing.
- The Company shall not be liable for any failure to provide or delay in providing the Goods to the extent that such delay arises out of or in connection with any act or omission of the Buyer or its sub-contractors, agents, officers or employees which either directly or indirectly affects the Company’s ability to provide the Goods including any breach of the Buyer of its obligations under the Contract. The Company reserves the right to invoice the Buyer for any additional expenses incurred by the Company as a result of such failure or delay.
- The Company reserves the right to impose a cancellation charge as notified by the Company to the Buyer from time to time on any Order cancelled. If the Buyer notifies the Company in Writing that an Order was made in error or was inaccurate, the Company may at its sole discretion accept the return of any Goods so ordered provided the Buyer accepts responsibility for the Company’s handling costs and such notification is received by the Company within 30 days of the Buyer’s receipt of the Goods. The Buyer hereby indemnifies the Company against all losses, damages, legal costs and other expenses of any nature whatsoever incurred by the Company when the Buyer cancels an Order for bespoke/special order Goods with the Buyer acknowledging that the Company may be unable to resell the same.
- Except when specified otherwise in Writing, the Goods will be delivered free of charge to the Delivery Address during normal working hours (8am to 5pm) (excluding weekends and national bank holidays) and unless there shall be any specific instructions as to whom the consignment should be delivered and whose signature shall be given by way of acknowledgement of receipt of the Goods then the Company shall only be obliged to accept the signature of an apparently authorised person.
- The Company cannot permit Goods to be left at any delivery address otherwise than in exchange for a signed receipt, nor can such receipt be qualified in any way whatsoever other than to identify a missing item or by describing the damage to any item alleged to be found damaged on delivery.
- If on delivery an apparently authorised person shall on behalf of the Buyer provide to the Company’s driver a written request to deliver the Goods to an alternative address then the driver may at his discretion honour such a request. This shall be entirely at the Buyer’s risk and the Company shall not be responsible for any losses thereby occasioned.
- The Company reserves the right to levy an additional charge in respect of delivery where it agrees to a change in the address for delivery of the Goods from the Delivery Address or if the value of the order for such Goods is below a minimum order value as determined by the Company from time to time and notified to the Buyer verbally or in writing.
- Times and dates quoted for despatch or completion represent the Company’s best estimates only and are given in good faith, time not being of the essence. In the event of the Buyer or its customer failing to take delivery at the appointed time and/or place, the Company shall hold the Goods for collection by the Buyer of Buyer’s agent for a period of 28 days only. The Company shall be entitled to charge the Buyer for all charges, penalties and any other expenses which may be incurred by the Company by reason of such failure. The Company shall have no liability to the Buyer for any late delivery or short delivery.
- The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer or its customer can provide conclusive evidence proving the contrary.
- The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company within 7 days of the date when the Goods would in the ordinary course of events have been received.
- 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.
- Damage or Loss in Transit:
- UK Mainland - Damage or loss in transit will be the responsibility of the carrier. As internal damage to Goods cannot always be identified on delivery carrier receipts should be signed unexamined, if so applicable, and any Goods broken or damaged in transit should be notified to the carrier and the Company within 7 days of receipt, otherwise no claim will be entertained. Exception is when delivery note for certain Goods specifies Buyer to inspect goods upon delivery and endorse any damages on the delivery note before signing in order to be eligible for acceptance as a damage claim.
- Outside UK Mainland – Damage or loss in transit the Company will only accept the responsibility if identified at the point of delivery to Buyer nominated freight company and reported to the Company immediately.
- Any alleged shortages or defects must also be notified to the Company in writing within 7 days of receipt of Goods. Should Goods not be delivered within 7 days of date of receipt of invoice for the Goods, immediate notice in Writing must be given to the carriers and the Company. In certain circumstances, the Company may agree to the return of Goods for credit but any agreement to accept such returns will always be subject to such Goods being deemed by the Company upon inspection at the Company’s premises, to be in a re-saleable condition. In the event of this not being the case, such Goods will be returned to the original delivery address and no credit will be issued.
- Waterline Limited may take a photograph of the delivery location and where possible, photographs of the goods delivered. In all cases, the recipient of a consignment will be required to provide their name, or sign an electronic device, or paper delivery note as proof of delivery of the consignment. Waterline Limited will not accept responsibility for any claims for missing goods on the ground that these are not shown on the photographs taken by the Waterline delivery driver. Any liability for any claims for losses or damaged goods, shall be subject to standard trading terms and conditions stated in clauses 5(1) to 5(3) above.
- Transfer of Risk and Passage of Title:
- Subject to Condition 5.1 but notwithstanding any other provisions hereof, risk in the Goods shall pass to the Buyer at the moment the Goods leave the Company’s premises.
- Subject to Condition 5 but notwithstanding any other provisions hereof, all property legal and equitable in the Goods or in the case of contracts for the sale or supply of Goods to a Buyer in Scotland, all property title and ownership in the Goods, shall remain in the Company and shall not pass to the Buyer unless and until receipt in cash or cleared funds of the due price of the Goods and all other Goods supplied or agreed to be supplied by the Company to the Buyer for which payment is then due under this or any other contract of sale to which these Conditions apply together with any interest which may have accrued there on pursuant to Condition 8. Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Company’s fiduciary agent and bailee. To assist the Company in asserting its property rights hereby retained, the Buyer shall (at the Buyer’s expense) so store keep and record the Goods as to facilitate their recognition and identification and shall permit the Company to enter the Buyer’s premises and re-take such retained Goods.
- Buyer should notify Waterline immediately if they enter a voluntary arrangement/Debt Management Plan with its creditors, is subject to a bankruptcy proceeding, suffers an administration order, goes into liquidation or has a receiver appointed. If the Buyer:- (i) fails to make any payment to the Company when due; or (ii) proposes to compound with its creditors, applies for an interim order under the Insolvency Act 1986 or has a bankruptcy petition presented against it; or (iii) being a company, enters into voluntary or compulsory liquidation, has a receiver, an administrator or administrative receiver appointed over all or any of its assets or takes or suffers similar action, or if the Company has reasonable cause to believe that any of these events is likely to occurthen the Company shall have the right, without prejudice to any other remedies:
(a) to enter, without prior notice, any premises of the Buyer where Goods owned by the Company may be and to repossess and dispose of any Goods owned by it so as to discharge any sums owed to it by the Buyer under this or any other contract;
(b) to require the Buyer not to resell or part with possession of any Goods owned by the Company until the Buyer has paid in full all sums due to the Company under this or any other contract;
(c) to withhold delivery of any undelivered Goods and stop any Goods in transit.
- The purpose of each Contract to which these Conditions apply is to provide the Buyer with stock for the Buyer’s own business as seller of such stock and not to alter them so that they become or are absorbed into some new thing. The Buyer shall deal with the Goods only and strictly in a manner consistent with this purpose.
- The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Buyer does so, all monies owing by the Buyer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
- The Company may appropriate any payments received from the Buyer to any outstanding invoice of the Company.
- Warranties & Guarantees:
- The Company warrants to the Buyer that the Goods:-
(a) will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979 (as amended));
(b) will materially correspond with any relevant description in the Order Confirmation, any specification or sample; and
(c) will comply with all statutory requirements and regulations relevant to the Goods.
- The Company gives no guarantees or warranties whether specific or implied that the Goods are fit for the purpose for which the Buyer intends to use such Goods whether known or unknown to the Company at the time of the Buyer placing the order other than they are fit for the particular purpose or purposes specified by the manufacturer of the Goods in its literature published from time to time or contained inside the packaging of the Goods.
- Any complaint relating to the quality or condition or description of the Goods shall be notified to the Company in Writing within 3 days of receipt of the Goods and if the Company so demands the Goods will be returned to the Company for examination whereupon if the complaint is found to be justified then the Goods will at the Company’s election be replaced or repaired free of charge.
- Any complaints as to condition or quality relating to part of an Order will not affect the liability of the Buyer to make payment within the stipulated time in respect of the remainder of the consignment. No claim by the Buyer in respect of the Goods shall be accepted or deemed to have been accepted by the Company save by an acceptance in Writing signed by a director of the Company. For the avoidance of doubt no employee, representative or agent of the Company is authorised to make any representations concerning the Goods or these Conditions save as agreed in Writing and signed by a director of the Company and the Company shall not be liability for any such representations which were not so confirmed.
- The Company shall not be liable for a breach of any of the warranties in Condition 7.1 if the defect arises as a result of any act or omission on the part of the Buyer or its sub-contractors, agents, officers or employees.
- All warranties, conditions and other terms implied by statute or common law (except for the conditions implied by Section 12 of the Sale of Goods Act 1979 and/or Section 2 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
- Nothing in these Conditions excludes or limits the liability of the Company for:
(a) death or personal injury caused by the Company’s negligence; or
(b) fraud; or
(c) any other liability which cannot be excluded or limited under applicable law.
- Subject to Conditions 7.6 and 7.7:-
(a) The Company’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Price; and
(b) The Company shall not be liable to the Buyer for any special, indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill, loss of contracts, loss of management time or otherwise), costs, expenses or other claims whatsoever and howsoever caused which arise out of or in connection with the Contract and whether foreseeable, known, foreseen or otherwise.
- Settlement Terms:
- Payment shall be made in full without set-off or counterclaim within 10 days of delivery of the Goods and the Company shall have the right to cancel or suspend any further orders for Goods in the event that earlier invoices are overdue at the time a further order is received or due to be despatched. Time shall be of the essence in respect of the Buyer’s payments to the Company.
- After the expiration of 10 days from delivery of the Goods the Company shall be entitled to charge interest on the outstanding balance at the rates set out under the Late Payment of Commercial Debts (Interest) Act 1998 accruing on a daily basis until payment is made, whether before or after any judgment.
- In the event that payment is still not made within 10 days of delivery of the Goods (without prejudice to any other rights or remedies of the Company) the Company shall be entitled to charge to the Buyer all costs expenses and other liabilities incurred by the Company in obtaining payment including without prejudice to the generality of the above the costs of any collection agency instructed by the Company.
- The Buyer warrants that it has the legal status set out in its Order and that it shall notify the Company in Writing if, not being incorporated as a limited company, it consequently incorporates itself as a limited company. If the Buyer is an individual, partnership, sole trader or equivalent then the Company may, at its sole discretion and at any time, impose a credit limit on the Buyer and/or require payment of a security deposit, prepayment or interim payment by the Buyer.
- Any credit limit imposed can be amended without prior notice. If the Buyer exceeds any such credit limit, the Company may (at its sole discretion):
(i) revise the Buyer’s credit limit; (ii) demand immediate payment of all the Charges exceeding the Buyer’s credit limit; and/or (iii) suspend the Service until it receives payment from the Buyer to bring the outstanding Charges down to the level of the Buyer’s credit limit. For the avoidance of doubt, the Buyer is and will remain responsible for all Charges incurred under the Contract including those exceeding the Buyer’s credit limit from time to time.
- If at any time the Company requires the Buyer to make a prepayment or pay a security deposit under Condition 8.5 above, the Company may:
(i) suspend supply of the Goods until it receives the payment; and (ii) terminate supply of the Goods altogether if it does not receive payment on time; and
(iii) at any time apply the security deposit (once paid) to meet any cost, loss or liability incurred as a result of any failure by the Buyer to comply with the Contract or to pay any amount owed by the Buyer to the Company.
- Intellectual Property:
- The Parties acknowledge and agree that all right, title and interest to any and all Intellectual Property in and to the Goods shall remain the property of the Company (or its suppliers) and the Buyer shall have no residual rights in such Intellectual Property.
- The Buyer hereby undertakes and agrees not to use or enable any other person to use the Intellectual Property underlying the Goods for any purpose or by any media in any country other than as expressly permitted in Writing in the Contract. The Company shall procure for the Buyer any rights required to use third party Intellectual Property in respect of the Goods in accordance with the Contract subject to any conditions or restrictions on such third party Intellectual Property, which conditions or restrictions the Buyer agrees to comply with in full.
- Except as expressly provided in the Contract, the Company’s sole responsibility in respect of third party Intellectual Property shall be limited to procuring the supply by the appropriate supplier/licensor of the third party Intellectual Property. The Company offers no warranty of any kind whatsoever in respect of any third party Intellectual Property.
All orders accepted by the Company for sale and supply of Goods to a Buyer in Scotland and any dispute arising therefrom shall be governed by Scottish law and subject to the non-exclusive jurisdiction of the Scottish Courts otherwise all orders accepted by the Company shall be governed by English law and subject to the jurisdiction of the English Courts.
- Force Majeure:
The Company shall not be deemed to be in breach of contract or otherwise be liable by reason of any delay in performance or non-performance of any of its obligations hereunder to the extent that such delay or non-performance beyond the Company’s reasonable control including but not limited to events such as acts of God, war, riot, civil commotion, fire, flood, adverse weather, terrorist action, nuclear, chemical or biological contamination, governmental order, rule or regulation, breakdown of plant or machinery or default of suppliers or sub-contractors.
Any order placed by the Buyer for Goods from the Company and which is governed by these Conditions may at the option of the Company be registered into books of Council and Session in Scotland for preservation and execution and the Buyer in placing such an order with the Company shall be deemed by their acceptance of the Terms and Conditions hereof, to have agreed to this.
- Data Protection Act 1998 Notice:
- Words used in this Condition in italics shall bear the meanings given to them in the Data Protection Act 1998 (“the Act”). Where the Buyer provides the Company with personal data, the Buyer understands that personal data will be held securely in confidence and processed for the purpose of carrying out the Company distribution business and associated activities. In considering the Buyer’s application, the Buyer accepts that the Company may consult with and disclose personal data to credit reference agencies, banks, credit insurers and other responsible organisations outside the Company’s business that the Buyer has nominated (“third parties”), and such third parties may process personal data. The Buyer understands that under the Act the Buyer has the right to know what personal data the Company holds on it if it applies to the Company in writing and pays the applicable fee.
- The Buyer agrees that the Company may use personal data to contact it with details of other products and services. Unless the Buyer has written to the Company objecting to the Company using personal data for such purpose the Buyer agrees that the Company may contact the Buyer by post, telephone, fax, email, via the internet, or other communication method.
- If you are a Partner in an unincorporated Partnership or an unincorporated Sole Trader your data will be transferred to our financiers for the purpose of providing finance. Their details are available upon request.
- The Company shall be entitled to sub-contract, transfer or assign any or all of its rights and/or obligations under the Contract without restriction. The benefits and obligations conferred by the Contract upon the Buyer are personal to the Buyer and shall not be capable of being, assigned, delegated, transferred, sub-contracted or otherwise disposed of and the Buyer shall not purport to assign, transfer, sub-contract or dispose of the same.
- Both the Company and the Buyer shall each keep confidential and shall not without the prior written consent of the other disclose to any third party any Confidential Information which it has acquired from the other as a result of discussions, negotiations, and other communications between them relating to the Goods.
- The Contract shall be binding upon and enure for the benefit of the successors in title (as permitted hereunder) of the Parties hereto.
- Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Any such notice may be delivered personally or by first class pre-paid letter, e-mail or facsimile transmission and shall be deemed to have been served, if by hand, when delivered; if by first class post, 48 hours after posting; and if by facsimile transmission or e-mail, when despatched.
- No waiver by the Buyer of any breach of the Contract by the Company shall be considered as a waiver of any subsequent breach of the same or any other provision.
- If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
- Except in relation to Condition 9, which may be enforced by the relevant proprietor of the third party Intellectual Property for the purposes of the Contracts (Rights of Third Parties) Act 1999, and notwithstanding any other provision of these Conditions, the Conditions are not intended to, and do not give any person who is not a party to it any right to enforce any of their provisions.