TERMS AND CONDITIONS FOR THE SALE OF GOODS

1. DEFINITIONS AND INTERPRETATION

1.1 In these Terms, the following definitions apply:
Business Day: means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 8.30 am to 5.00 pm on any Business Day.
Contract: the contract between Kelmore and the Customer for the sale and purchase of the Goods in accordance with these Terms.
Customer: the person or firm who purchases the Goods from Kelmore.
Delivery Location: has the meaning given in clause 4.2.2.
Force Majeure Event: means events, circumstances or causes beyond a party’s reasonable control including but not limited to, Acts of God, flood, drought, earthquake or other natural disaster, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations, nuclear, chemical, biological contamination or sonic boom, epidemic or pandemic, any law or any action taken by the Government or a public authority including without limitation imposing an export or import restriction, quota or prohibition, and the collapse of buildings, fire, explosion or accident and in the case of Kelmore, a failure of its suppliers, contractors, or any courier or delivery partner in respect of the Goods.
Goods: the goods (or any part of them) set out in the Order, having been referred to initially within the Price List and detailed within the Specification.
Intellectual Property Rights: means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Loss: actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, interest, liabilities, losses, penalties, proceedings and settlements, and Losses shall be construed accordingly.
Order: the Customer’s order for the Goods, as set out in the Customer’s written acceptance of the price(s) in the Price List.
Order Confirmation: means Kelmore’s written acceptance of the Order, raised in accordance with clause 2.4.2.
Price List: means Kelmore’s published price list in respect of the Goods, as may be distributed to the Customer via email, in hard copy or as otherwise provided to the Customer from time to time.
Promotional Materials: means Kelmore’s catalogues, brochures, websites or such other applicable sales, descriptions, colours, particulars of weights and dimensions or promotional literature, materials or publications.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Kelmore.
Kelmore: means Kelmore Limited registered in England and Wales with company number 12985784 whose registered office is at Kelmore’s Premises.
Kelmore’s Premises: means Kelmore Limited, The Dell, Berry Way, Chorley, PR7 6RA or such other address that is notified to the Customer in writing from time to time.
Website: means any website used by Kelmore for describing and displaying the Goods and Services for sale.
VAT: means Value Added Tax.
Terms: the terms and conditions set out in this document as amended from time to time in accordance with clause 14.3.
1.2 In these Terms, the following rules of interpretation apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 a reference to a party includes its personal representatives, successors and permitted assigns.
1.2.3 a reference to legislation or a legislative provision is a reference to it as amended or re-enacted and shall include all subordinate legislation made under that legislation or legislative provision from time to time.
1.2.4 any words following the terms including, include or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 a reference to writing or written excludes fax but not email.

2. BASIS OF CONTRACT

2.1 These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Price List shall not constitute an offer but instead an invitation to treat. The Price List shall only be valid for the period of time that it is in force, until it is superseded by an updated version, as may occur from time to time at Kelmore’s absolute discretion. If the Customer accepts the position set out in the Price List, it shall be required to raise an Order.
2.3 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Terms. The Customer is responsible for ensuring and warrants that the terms of the Price List, the Order and any applicable Specification are complete and accurate.
2.4 Kelmore may reject the Order at its absolute discretion and for any reason whatsoever and the order shall only be deemed to be accepted at the earlier of when Kelmore:
2.4.1 despatches the Goods; or
2.4.2 issues the Order Confirmation,
at which point the Contract shall come into existence.
2.5 Any samples, drawings, descriptive matter or advertising produced by Kelmore and any descriptions or illustrations contained in the Price List and Kelmore’s catalogues, brochures or Website are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 The Customer expressly acknowledges and agrees that any advice, guidance, recommendation and/or suggestion provided by Kelmore in relation to the Goods and/or their fitting and/or use and/or capabilities is intended to cover general principles only and is not intended to constitute any formal advice, guidance, recommendation and/or suggestion in relation to any specific circumstances and, consequently, the Customer assumes sole responsibility for any reliance that it places upon any such advice, guidance, recommendation and/or suggestion.

3. GOODS

3.1 The Goods are described in the Promotional Materials as modified by any applicable Specification. Kelmore reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and Kelmore shall notify the Customer in any such event.
3.2 The Customer shall indemnify, keep fully indemnified and hold Kelmore harmless at all times against all Losses (including any direct, indirect or consequential Losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Kelmore in connection with any claim made against Kelmore for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Kelmore’s use of the Specification. This clause 3.2 shall survive termination of the Contract.

4. COLLECTION AND DELIVERY

4.1 Where the Customer wishes to collect the Goods from Kelmore’s Premises, the Customer shall collect the Goods from Kelmore’s Premises within Business Hours and warrants that it shall comply with all reasonable instructions provided by Kelmore in relation to the collection of the Goods.
4.2 Where Kelmore has agreed to deliver the Goods, Kelmore shall:
4.2.1 ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable) and special storage instructions (if any).
4.2.2 deliver the Goods to the address set out in the Order or such other address as is agreed by the parties (Delivery Location).
4.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
4.4 Delivery dates are approximate only, and the time of delivery is not of the essence. Kelmore shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event, or the Customer’s failure to provide Kelmore with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 It is the Customer’s responsibility to ensure that the Delivery Location is suitably prepared in order for the delivery of the Goods to take place, and the Customer shall be required to provide Kelmore (and any courier or agent appointed by it) safe access to the Delivery Location in order for delivery to take place.
4.6 If Kelmore fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Kelmore shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Kelmore with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.7 If the Customer fails to take or accept delivery (or collection) of the Goods within three Business Days of Kelmore notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Kelmore’s failure to comply with its obligations under the Contract in respect of the Goods:
4.7.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Kelmore notified the Customer that the Goods were ready; and
4.7.2 Kelmore shall store the Goods until actual delivery takes place and charge the Customer for all related costs and expenses (including insurance).
4.8 If ten Business Days after the day on which Kelmore notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted actual delivery of them, Kelmore may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.9 Kelmore may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5. QUALITY

5.1 The Customer shall be required to inspect the Goods immediately on delivery taking place. In the event that:
5.1.1 there are any apparent damages or defects in the Goods;
5.1.2 an incorrect quantity of the Goods; or
5.1.3 anything other than the Goods are received,
the Customer shall be required to notify Kelmore within 2 Business Days of delivery. Where no such notification is made by the Customer to Kelmore in accordance with this clause, the Goods shall be deemed to be accepted in all material respects by the Customer (Deemed Acceptance).
5.2 Without prejudice to clause 5.1 and subject to the Customer’s warranty at clause 2.3, Kelmore warrants that on delivery, the Goods shall:
5.2.1 conform in all material respects with their description and any applicable Specification;
5.2.2 be free from material defects in design, material and workmanship;
5.2.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
5.2.4 be fit for any purpose held out by Kelmore.
5.3 Subject to clause 5.4, if:
5.3.1 the Customer gives notice in writing to Kelmore prior to Deemed Acceptance of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.2;
5.3.2 Kelmore is given a reasonable opportunity of examining such Goods; and
5.3.3 the Customer (if asked to do so by Kelmore) returns such Goods to Kelmore’s Premises at the Customer’s cost,
Kelmore shall, at its option, replace the defective Goods or refund the price of the defective Goods in full.
5.4 Kelmore shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.2 if:
5.4.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.3;
5.4.2 the defect arises because the Customer failed to follow Kelmore’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.4.3 the defect arises as a result of Kelmore following any drawing, design or Specification supplied by the Customer;
5.4.4 the Customer alters or repairs such Goods without the written consent of Kelmore;
5.4.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.5 the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements or for as amended in accordance with clause 3.1. Except as provided in this clause 5, Kelmore shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.2.
5.6 These Terms shall apply to any replacement Goods supplied by Kelmore.

6. TITLE AND RISK

6.1 The risk in the Goods shall pass to the Customer on the collection of the Goods from Kelmore’s Premises in the event of collection by the Customer, or on the unloading of the Goods at the Delivery Location in the event of delivery to the Customer.
6.2 Title to the Goods shall not pass to the Customer until Kelmore receives payment in full (in cash or cleared funds) for the Goods.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods at no cost to Kelmore separately from all other goods held by the Customer so that they remain readily identifiable as Kelmore’s property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.4 notify Kelmore immediately if it becomes subject to any of the events listed in clause 9.1.3 to clause 9.1.5; and
6.3.5 give Kelmore such information as Kelmore may reasonably require from time to time relating to:
(a) the Goods; and
(b) the ongoing financial position of the Customer.
6.3.6 Give Kelmore or its authorised representative access to the place where the Goods are located.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Kelmore receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.4.1 it does so as principal and not as Kelmore’s agent; and
6.4.2 title to the Goods shall pass from Kelmore to the Customer immediately before the time at which resale by the Customer occurs.
6.5 At any time before title to the Goods passes to the Customer, then without limiting any other right or remedy, Kelmore may:
6.5.1 by notice in writing, terminate the Customer’s right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and
6.5.2 require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7. PRICE AND PAYMENT

7.1 The price of the Goods shall be the price set out in the Price List as in force as at the date of delivery.
7.2 Kelmore may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to a request by the Customer to change any material aspects of the Order, delay caused by the instructions of the Customer, or any other factor beyond Kelmore’s control (including, without limitation, the occurrence of a Force Majeure Event).
7.3 The price of the Goods:
7.3.1 excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Kelmore at the prevailing rate, subject to the receipt of a valid VAT invoice; and
7.3.2 includes the costs and charges of packaging, delivery, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 Notwithstanding clause 7.3, Kelmore reserves the right to levy a carriage surcharge in order to cater for any special delivery requests raised by the Customer in respect of the Goods, which shall be payable in accordance with this clause 7.
7.5 Kelmore may invoice the Customer for the Goods on or at any time after the Goods are made available for collection or delivery.
7.6 Subject to any conflicting payment terms which may be agreed in writing between the parties, the Customer shall pay each invoice submitted by Kelmore
7.6.1 within 30 days of the end of the month in which the invoice was raised; and
7.6.2 in full and in cleared funds to a bank account nominated in writing by Kelmore,
and time for payment by the Customer shall be of the essence under the Contract.
7.7 If the Customer fails to make a payment due to Kelmore under the Contract by the due date, then, without limiting Kelmore’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.7 shall accrue on a daily basis at a rate of 8% a year above the Bank of England’s base rate from time to time.
7.8 Kelmore reserves the right to close a Customer’s account for any reason at its sole and absolute discretion. In the event that Kelmore initiates an account closure in accordance with this clause 7.8, Kelmore shall endeavour to notify the Customer of such closure in writing and, where it does so, all then outstanding invoices shall become immediately due and payable. Where Kelmore has closed a Customer’s account and not submitted an invoice for Goods already provided, Kelmore shall invoice the Customer as soon as reasonably practicable, with such invoice becoming due and payable 7 days after its date.
7.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. LIMITATION OF LIABILITY

8.1 Nothing in the Contract shall limit or exclude Kelmore’s liability for:
8.1.1 death or personal injury caused by negligence;
8.1.2 fraud or fraudulent misrepresentation;
8.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
8.1.4 any matter in respect of which it would be unlawful for Kelmore to exclude or restrict liability.
8.2 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
8.3 Subject to clause 8:
8.3.1 Kelmore shall under no circumstances whatsoever be liable to the customer, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, for any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential Loss,
that arises under or in connection with the Contract; and
8.3.2 Kelmore’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, misrepresentation, restitution or otherwise, shall in no circumstances exceed the total price of the Goods paid or payable by the Customer to Kelmore under the Contract.
8.4 This clause 8 shall survive termination of the Contract.

9. TERMINATION

9.1 Without limiting its other rights or remedies, Kelmore may terminate the Contract with immediate effect by giving written notice to the Customer if:
9.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing to do so;
9.1.2 the Customer repeatedly breaches any of the terms of the contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to perform the Contract;
9.1.3 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), obtaining a moratorium, 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;
9.1.4 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.5 the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
9.2 Without limiting its other rights or remedies, Kelmore 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.
9.3 On termination of the Contract for any reason the Customer shall immediately pay to Kelmore all of Kelmore’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Kelmore shall submit an invoice, which shall be payable by the Customer immediately on receipt.
9.4 Termination of the Contract, however arising, 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 which existed at or before the date of termination.
9.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 All Intellectual Property Rights subsisting in any Goods supplied to the Customer by or on behalf of Kelmore arising out of or in connection with the Contract shall remain vested in and belong to Kelmore absolutely.
10.2 Kelmore makes no warranty and provides no assurance to the Customer that the Goods shall not breach the rights (including Intellectual Property Rights) of third parties.

11. CONFIDENTIALITY

11.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 11.2.
11.2 Each party may disclose the other party’s confidential information:
11.2.1 to its employees, officers, representatives or advisors who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisors to whom it discloses the other party’s confidential information comply with this clause 11; and
11.2.2 as may be required by law, a court of competent jurisdiction or any government or regulatory authority.
11.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

12. FORCE MAJEURE

Kelmore shall not be in breach of the Contract nor liable for delay in performing, or failing to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event.

13. NOTICES

13.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or email.
13.2 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

14. GENERAL

14.1 Assignment and other dealings
14.1.1 Kelmore may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
14.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
14.2 Entire agreement
14.2.1 The Contract constitutes the entire agreement between the parties in relation to its subject matter.
14.2.2 Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
14.3 Variation
Except as set out in the Contract, no variation of this Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the parties (or their authorised representatives and permitted assigns).
14.4 Waiver
A failure or delay by a Party to exercise, or the single or partial exercise of, any right or remedy provided under the Contract or by law shall not 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.
14.5 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.
14.6 Third party rights
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
14.7 Governing law
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 accordance with the law of England and Wales.
14.8 Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.