Terms and Conditions
Terms and Conditions for the Supply of Goods by Onit Direct Ltd
1.1 The definitions and rules of interpretation in this condition apply in these Conditions.
“Buyer” means the person, firm or company who purchases the Goods from the Company;
“Company” means Onit Direct Ltd
“Contract” means any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions and any quotation issued by the Company for the Goods;
“Contract Price” means the total price payable by the Buyer for the supply of Goods under a Contract;
“Delivery Point” means the place where delivery of the Goods is to take place under condition 4;
“Goods” means any products or items agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them) and the Services (where the context so implies), together with any other goods which the Buyer agrees to take from the Company;
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
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.
1.5 Condition headings do not affect the interpretation of these Conditions.
2 Application of terms
2.1 Subject to any variation under condition 2.3 the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by the General Manager or a Director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these Conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company
2.6 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order to the Buyer (in the case of an order with a total value of more than £2,000) or (if earlier) the Company delivers the Goods (or starts providing the Services) to the Buyer. Any quotation is valid for a period of 14 days only from its date, provided that the Company has not previously withdrawn it.
2.7 If the Buyer requests custom, bespoke or non-standard Products, the Company shall prepare a proposed design specification (“Specification”) for the Buyer’s approval. The Company shall not commence production of Bespoke Products until the Buyer has confirmed in writing that the Specification of the Bespoke Products is acceptable. Should the Buyer decide not to proceed with the order for Bespoke Products, the Buyer shall be liable to pay for the Company’s reasonable costs and expenses incurred in producing the Specification.
2.8 If, at any point following commencement of production of bespoke, custom or non-standard Products, the Buyer wishes to change the Specification, the Company shall consider whether such request is possible and, if so, reserves the right to increase the price quoted for the Bespoke Products.
3.1 The quantity and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures 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.
4.1 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.2 The Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.3 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.3.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
4.3.2 the Goods shall be deemed to have been delivered; and
4.3.3 the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.4 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for unloading the Goods.
4.5 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.6 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
4.7 Export Terms
4.7.1 In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
4.7.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 11 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
4.7.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
4.8.4 Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be delivered fob the air or sea port of shipment and the Seller shall be under no obligation to give notice under Section 32(3) of the Sale of Goods Act 1979.
4.7.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
4.7.6 Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer at Buyer’s expense in favour of the Seller and confirmed by a recognised European Bank acceptable to the Seller or, if the Seller has agreed in Writing on or before acceptance of the Buyer’s order to waive this requirement, by acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn on the Buyer payable 60 days after sight to the order of the Seller at such branch of National Westminster Bank in England as may be specified in the bill of exchange.
4.7.7 The Buyer undertakes not to offer the Goods for resale in any country notified by the Seller to the Buyer at or before the time the Buyer’s order is placed, or to sell the Goods to any person if the Buyer knows or has reason to believe that that person intends to resell the Goods in any such country.
5.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within 24 hours of the time when the Goods would in the ordinary course of events have been received.
5.3 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.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
6.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4 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 Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
6.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
6.4.2 any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
6.5.1 the Buyer his 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 Buyer or notice of intention to appoint an administrator is given by the Buyer 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 Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer;
6.5.2 the Buyer 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 Contract or any other contract between the Company and the Buyer, 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
6.5.3 the Buyer encumbers or in any way charges any of the Goods.
6.6 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.
6.7 The Buyer 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 Buyer’s right to possession has terminated, to recover them.
6.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.9 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.
7.1 Prices published on the website can be changed at anytime, the order /price is deemed accepted by the Company only when a formal order confirmation is provided, this does not include automated receipt generated when online order is placed.
7.2 The price for the Goods shall be exclusive of any value added tax as default. Costs or charges in relation to handling, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods, unless specified otherwise at time of quoting or order confirmation.
8.1 Subject to condition 8.4, payment of the price for the Goods is due either in Pounds Sterling
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Yorkshire Bank, accruing on a daily basis until payment is made, whether before or after any judgment.
8.7 If the Buyer fails to pay the Company within 30 days of the date of invoice, the Company reserves the right to withdraw any account of the Buyer so that they may only deal in future on a pro forma basis.
9.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
9.2 The Company warrants that (subject to the other provisions of these Conditions) on delivery, and for a period of 6 months from the date of delivery, the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
9.3 Where the Buyer is a consumer, this warranty is in addition to the Buyer’s legal rights in relation to Goods which are faulty or which otherwise do not conform with these Conditions.
9.4 The Company shall not be liable for a breach of the warranty in condition 9.2 unless:
9.4.1 the Buyer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within 24 hours of the time when the Goods were delivered to the customer; and
9.4.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (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 or, if appropriate, the Company examines the Goods at the Buyer’s place of business.
9.5 The Company shall not be liable for a breach of the warranty in condition 9.2 if:
9.5.1 the Buyer makes any further use of such Goods after giving such notice; or
9.5.2 the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
9.5.3 the Buyer alters or repairs such Goods without the written consent of the Company.
9.6 Subject to condition 9.4 and condition 9.5, if any of the Goods do not conform with the warranty in condition 9.2 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 Contract rate provided that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company.
9.7 If the Company complies with condition 9.6 it shall have no further liability for a breach of the warranty in condition 9.2 in respect of such Goods.
9.8 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 6 month period.
10 Intellectual Property, Confidentiality and Data Protection
10.1 The Buyer warrants that, where any designs or information are supplied to the Company, such designs or information do not and will not infringe any intellectual property rights of whatever nature of any third party anywhere in the world.
10.2 All intellectual property rights and all other rights in any designs, drawings or materials prepared or supplied by the Company in connection with the provision of the Goods and/or Bespoke Products shall remain the property of the Company.
10.3 All information supplied to the Buyer by the Company at any time in connection with the provision of the Goods and/or Bespoke Products shall be regarded as confidential and shall not without the prior written consent of the Company be published or disclosed to any third party. The obligations under this condition 10.3 shall survive notwithstanding termination or expiry of these Conditions.
10.4 The Buyer acknowledges and agrees that details of the Buyer’s name, address and payment record may be submitted to a credit reference agency and personal data will be processed by and on behalf of the Company.
11.1 The Buyer shall not, during the term of the Contract or for a period of 12 months from the date of termination of the Contract (for whatever reason), solicit, endeavour to entice away, employ, offer to employ or engage any person who is at any time during the term of the Contract employed by the Company (whether or not such person would commit any breach of his contract of service or consultancy agreement in leaving such employment or engagement).
12 Limitation of liability
12.1 Subject to conditions 4.3, 5.2, 9, 12.2 and 12.3, the total liability of the Company to the Buyer whether in contract, tort, negligence, breach of statutory duty or otherwise for any direct loss or damage, costs or expenses arising under or in connection with these Conditions (including, without limitation, direct loss of business, direct loss of profit or other direct economic or financial loss or damage) shall not exceed an amount equal to 150% of the Contract Price.
12.2 Subject to condition 12.3, the Company shall not be liable to the Buyer whether in contract, tort, negligence, breach of statutory duty or otherwise for any indirect or consequential loss or damage, costs or expenses arising out of or in connection with these Conditions.
12.3 Nothing in these Conditions shall exclude or restrict the liability of the Company to the Buyer:
12.3.1 for death or personal injury resulting from the Company’s negligence; or
12.3.2 for fraud or fraudulent misrepresentation; or
12.3.3 in any other circumstances where the Company’s liability may not be so limited under any applicable law.
13.1 The Company may assign the Contract or any part of it to any person, firm or company.
13.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
14 Force majeure
14.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 30 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
15.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
15.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
15.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
15.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
15.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of The Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
15.6 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts.
16.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or email (confirmed by first class post):
16.1.1 (in case of communications to the Company) to the address specified in these Conditions, or such other address as shall be notified to the Buyer by the Company; or
16.1.2 (in the case of the communications to the Buyer) to the trading address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
16.2 Communications shall be deemed to have been received:
16.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
16.2.2 if delivered by hand, on the day of delivery; or
16.2.3 if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
17 Returns and Cancellations – Business Customers
17.1 Under no circumstances will the Company accept the return of any goods without prior approval by a Company official who will issue the customer a goods return form, and in any case not after 28 days of supply. The Company will refund or credit the customer reasonable carriage charges only for returned goods found to be defective in accordance with our quality standards (reference 9.2); otherwise all carriage, packing, and handling costs are the responsibility of the customer.
17.2 Where cancellation or return is accepted, the Company will charge the Buyer an agreed restocking charge to include restocking and costs from outbound delivery even when delivery was included free of charge. Charge to be agreed prior to return of the items.
17.3 Under no circumstances will cancellation be accepted for items specially manufactured or ordered on the customers’ behalf.
17.4 Any Goods damaged during transit must be notified to us within 48 hours or returns will not be accepted.