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SBA TERMS & CONDITIONS OF SALE

1. DEFINITIONS

1.1 The following expressions in these conditions of sale shall have the following meanings:-

Buyer: the person, firm or company who purchases the Goods from SBA.

Consumer: a Buyer who is a natural person acting for purposes which are outside his business.

Contract: any contract between SBA and the Buyer for the supply of Goods by SBA.

Distance Selling Regulations: The Consumer Protection (Distance Selling) Regulations 2000;

Personal Data: has the meaning ascribed to it in The Data Protection Act 1998.

Goods: any goods agreed in the Contract to be supplied to the Buyer by SBA.

International Supply Contract: means such a contract as is described in section 26(3) of the Unfair Contract Terms Act 1977.

SBA: SBA Limited 90 Freemens Common Road, Leicester, LE2 7SQ

“Website”: the website at www.sba.co.uk.

1.2 Words in the singular include the plural and in the plural include the singular.

1.3 A reference to one gender includes a reference to the other gender.

1.4 Condition headings do not affect the interpretation of these conditions.

2.1 Unless these conditions are varied as set out in condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including but not limited to any terms or conditions of the Buyer) except those terms which SBA has included on its acknowledgement of order.

2.3 These conditions apply to all of SBA’s sales and any variation to these conditions shall have no effect unless expressly agreed in writing and signed by a director of SBA.

2.4 Each order or acceptance of a quotation for Goods by the Buyer shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions. Price listing and/or the display of the Goods on the Website or otherwise is an invitation to make an offer to buy them by placing an order with SBA. SBA shall be entitled not to accept any order. Where the Buyer orders on the Website SBA will only be deemed to have accepted an order when it sends to the Buyer an e-mail specifically accepting the order and at that stage the Contract will be binding. An acknowledgement by SBA of receipt of an order made on the Website shall not be deemed to be acceptance. Where the Buyer orders otherwise than via the Website SBA will only be deemed to have accepted the order when a duly authorised representative of SBA accepts the order or when SBA commences performance of the Contract (whichever is the earlier). The Buyer should note that any acceptance of an order is subject to the availability of the Goods and if, following acceptance, SBA notifies the Buyer that SBA is unable to obtain such Goods from its suppliers within a reasonable time period, SBA shall be entitled to cancel the Contract without liability.

2.5 The steps to placing an order on the Website are set out in the Website.

2.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, the Website, invoice or other document or information issued by SBA shall be subject to correction by SBA without any liability on its part.

3. SPECIFICATION, INSTRUCTIONS OR DESIGN

3.1 If Goods or any part of them are made or altered to a specification, instruction or design supplied by or on behalf of the Buyer then:

3.1.1 the suitability and accuracy of it will be the Buyer’s responsibility; and

3.1.2 the Buyer will indemnify SBA against any infringement or unauthorised use or alleged infringement or alleged unauthorised use of any third party’s intellectual property rights and against any loss, liability, damage or expense which SBA may incur by reason of the same in any country; and

3.1.3 the Buyer will indemnify SBA against any loss, damage or expense in respect of any liability arising in any country by reason of the Goods being made to such specification, instruction or design.

3.2 The colour reproductions of Goods displayed on the Website and/or on printed materials issued by SBA may differ from those of the actual Goods but are as accurate as the relevant process (i.e. printing or electronic process) permits.

3.3 SBA endeavours to ensure that descriptions of Goods are accurate at the time of issue of the relevant publication of such details but reserves the right to change such descriptions and/or the Goods as part of its policy of continuous improvement. Prior to ordering Goods the Buyer must check with SBA any details upon which the Buyer wishes to rely in respect of the Goods.

4.1 Unless otherwise agreed by SBA, SBA will deliver the Goods to the address set out in the Buyer’s order.

4.2 Estimated delivery times may be indicated on the Website. Any dates specified by SBA for delivery of the Goods (whether on the Website or otherwise) are intended to be an estimate only and time for delivery shall not be or be made of the essence. SBA shall not be responsible for any losses, costs, damages or expenses suffered due to delay in delivery.

4.3 Orders with an invoice value of £50 or less shall be subject to an extra order charge of £10 plus VAT at SBA’s discretion.

4.4 If the Buyer fails to take delivery of the Goods at the time stated for delivery or fails to give SBA adequate delivery instructions then, without prejudice to any other right or remedy available to SBA, SBA may:

4.4.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage and abortive delivery costs and associated costs; and/or

4.4.2 sell the Goods at the best price reasonably obtainable and (after deducting all reasonable storage and selling and other expenses of SBA) account to the Buyer for the excess over the price agreed in the Contract after deducting SBA’s costs and expenses or charge the Buyer for any shortfall below the price agreed in the Contract.

4.5 SBA shall also be entitled to defer delivery until any monies due from the Buyer have been received.

4.6 SBA reserves the right to deliver the Goods in instalments. Part deliveries shall be deemed to represent separate contracts and failure by SBA to deliver any one or more of the instalments or any claim by the Buyer in respect of one or more of the instalments shall not entitle the Buyer to treat the Contract as a whole repudiated.

4.7 Subject to the provisions of clause 5.1, Goods may only be returned for credit if SBA has given prior consent, and the original advice note number and/or sales invoice number must be quoted.

4.8 If the Contract is an International Supply Contract it shall be deemed to incorporate the latest edition of Incoterms current at the date of the Contract but in the event of any inconsistency between Incoterms and any express term of the Contract the latter shall prevail. SBA shall be under no obligation to give the Buyer the notice specified in section 32(3) of the Sale of Goods Act 1979.

4.9 The Buyer shall be responsible for all off loading of Goods and shall indemnify SBA for any damage or liability which may occur,

5. CANCELLATION OF THE CONTRACT BY CONSUMERS

5.1 If the Buyer is a Consumer entitled to take the benefit of the Distance Selling Regulations then subject to the provisions of clause 5.2 he/she may cancel the Contract by sending written notice to SBA within 8 working days of the day that the Goods are received. It is a term of the Contract that in the event of cancellation the Buyer will promptly return the Goods to SBA in an unused and saleable condition and in their original packaging, and the Buyer shall be responsible for the cost of such return.

5.2 A Consumer shall not be entitled to cancel the Contract under the provisions of clause 5.1 where:-

5.2.1 the Goods have been made or altered to the Consumer’s specification or personalised in any way;

5.2.2 the Goods are likely to deteriorate quickly;

5.2.3 the Goods are sealed audio or video recordings or computer software and have been unsealed;

5.2.4 the Goods are periodicals or magazines; or

5.2.5 the price of the Goods is dependent upon fluctuations in the financial market.

 

6. PRICES

6.1 In the case of Website sales the price for the Goods and the standard delivery charges are set out on the Website. In the case of sales other than on the Website the prices and delivery charges are as set out on any acknowledgement of order issued by SBA. Prices displayed on the Website or upon printed matter issued by SBA are subject to VAT where applicable. Mistakes in pricing can occur and SBA will contact the Buyer if a mistake is discovered. The Buyer shall then have the option to buy the Goods at the correct price (as stipulated by SBA) or to cancel the Contract within 3 working days of SBA notifying the Buyer of the error. If the Contract is not cancelled by the Buyer within 3 working days the Buyer shall be deemed to have contracted to buy the Goods at the corrected price which SBA stipulates and not the price which was stipulated in error. SBA usually makes a standard delivery charge. However, in some cases delivery charges are not standard and such delivery charges shall be as notified by SBA to the Buyer. If the Buyer does not accept such delivery charges the Buyer may cancel the Contract within 3 working days of having been notified of the delivery charges.

6.2 Although SBA will try to maintain prices, fluctuations in the cost of raw material and labour, suppliers’ prices, increase of postage and other delivery charges, and other circumstances may necessitate an increase in prices and SBA reserves the right to increase the price of the Goods to the Buyer in any of these circumstances. SBA shall be entitled to increase the prices as aforementioned between acceptance of an order and delivery but, in this case, the Buyer shall have the option to cancel the Contract within 3 working days of the date of notification of the increase by SBA.

7. PAYMENT

7.1 Payment of the price for the Goods and the delivery charges must be made in Pounds Sterling unless specified otherwise by SBA. Unless the Buyer has a credit account with SBA the Buyer shall pay for all Goods upon the placing of the order for the Goods with SBA. Where the Buyer has a credit account with SBA the Buyer shall pay SBA’s invoice within 30 days of the date of such invoice unless otherwise agreed in writing by SBA. Time for payment shall be of the essence.

7.2 No payment shall be deemed to have been received until SBA has received cleared funds.

7.3 Without prejudice to SBA’s other rights and remedies, if the Buyer is overdue with any payment owed to SBA, SBA reserves the right to charge interest to the Buyer on the unpaid amount at the rate of 5% per annum over the base rate from time to time at HSBC Bank plc until payment is made in full.

7.4 The Buyer will indemnify SBA in respect of all costs, fees (including but not limited to legal fees) and expenses incurred by SBA in recovering payments due to it from the Buyer.

8. PROPERTY AND RISK

8.1 Unless the Contract is an International Supply Contract risk in the Goods and responsibility for the Goods will pass to the Buyer on delivery.

8.2 Until the Contract price of the Goods comprised in the Contract or any other contract between the Buyer and SBA and all other sums whatsoever which are or may become outstanding from the Buyer to SBA shall have been paid or satisfied in full as cleared funds:-

8.2.1 the property in the Goods remains vested in SBA (notwithstanding the delivery of the same and the passing of risk therein) and the Buyer shall hold the Goods as the fiduciary agent and bailee of SBA;

8.2.2 the Buyer shall store the Goods in such a way that they can be readily identified as being SBA’s property;

8.2.3 the Buyer shall insure the Goods and, in the event of any loss or damage, shall immediately on receipt of the insurance monies remit to SBA the full Contract price of the Goods lost or damaged less any part thereof which has already been paid and until such amount has been so remitted shall hold such amount as trustee for SBA;

8.2.4 the Buyer shall on request inform SBA of the precise location of each item of the Goods, identified where applicable by its invoice number, by supplying SBA at the Buyer’s expense within seven days of its request with a schedule of the said location;

8.2.5 the Buyer may sell the Goods in the ordinary course of business in the name of the Buyer as principal and not as agent for SBA; the Buyer acts as SBA’s bailee in respect of such sales and shall immediately upon such sale, and whether or not payment has become due under clause 7, remit to SBA the full purchase price of the Goods sold less any part of it which has already been paid and, until such amount has been so remitted, shall hold such amount as trustee for SBA;

8.2.6 SBA may at any time revoke the Buyer’s power of sale;

8.2.7 the Buyer’s power of sale shall in any event automatically cease in any of the circumstances set out in clause 11.3 or 11.4;

8.2.8 the Buyer shall notify SBA without delay of any attachment of the Goods or actions by third parties which might infringe SBA’s title to the Goods;

8.2.9 upon determination of the Buyer’s power of sale SBA shall be entitled by itself its servants or agents to enter upon any of the Buyer’s premises for the purpose of removing and repossessing such Goods or their proceeds of sale and SBA shall be entitled to claim from the Buyer the costs and expenses incurred by SBA in and ancillary to the process of removal and repossession; and

8.2.10 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 SBA, but if the Buyer does so, all moneys owing by the Buyer to SBA shall (without prejudice to any other right or remedy of SBA) forthwith become due and payable; and

8.3 Until title in the Goods has passed to the Buyer, the Buyer shall not purport to be the owner of the Goods and shall not show such Goods as stock in its accounts.

8.4 Nothing in this clause shall:

8.4.1 entitle the Buyer to return the Goods or to delay payment therefore, or

8.4.2 constitute or be deemed to have constituted the Buyer as SBA’s agent, or

8.4.3 prevent SBA from maintaining an action for the price, notwithstanding that the property in the Goods may not have passed to the Buyer.

 

9. LIMITATION OF LIABILITY

9.1 SBA will have no liability for damage in transit, shortage of delivery, non-delivery or loss of Goods unless the Buyer shall have given to SBA written notice of such damage, shortage or loss with reasonable particulars of the same within 2 days of receipt of the Goods or (in the case of total loss or non-delivery) of receipt of the invoice or other notification of despatch. SBA’s liability, if any, shall be limited to SBA replacing such Goods or, (at SBA’s option) in the case of account customers, issuing a credit note for the Goods or, in the case of Consumers, giving a refund of the price paid by the Consumer for the Goods. The Buyer shall if so requested provide authority for SBA’s servants or agents to inspect any damaged Goods within 14 days of such request.

9.2

9.2.1 SBA’s liability in respect of any defect in Goods supplied or work done is limited to (at SBA’s option)

9.2.1.1 either replacing or (at SBA’s option) paying for the replacement of Goods (or those parts of the Goods which are proved to be defective) or

9.2.1.2 (in the case of account customers) issuing a credit note to the Buyer in respect of Goods which are defective or (in the case of Consumers) giving a refund of the price paid by the Consumer for Goods which, within 7 days of delivery to the Buyer (in the case of defects apparent upon inspection) or within 30 days of delivery to the Buyer (in the case of defects not apparent on inspection) or (where SBA is able to take advantage of the guarantee from the manufacturer) within the manufacturer’s guarantee period (whichever period is the longer), are found to be defective by reason of faulty or incorrect design, workmanship, parts or materials.

9.2.2. In the event of any error in any weight, dimension, colour or other description which has formed a representation or is part of the Contract SBA’s liability in respect of any loss or damage sustained by the Buyer as a result of such error shall not exceed the price of the Goods in respect of which the description is incorrect.

9.2.3 Conditions precedent to SBA’s liability hereunder shall be that as soon as reasonably practicable the Buyer shall have given to SBA reasonable notice of the defect or error and shall (at SBA’s option) have provided authority for SBA’s employees or agents to inspect the Goods or shall have returned the Goods to SBA within a reasonable timescale specified by SBA.

9.2.4 SBA shall have no other or further liability in respect of any direct or indirect or consequential loss, liability, costs, damage or expense sustained by the Buyer arising from or in connection with any such defect or error in the Goods as aforesaid.

9.3 Where SBA agrees to repair or replace Goods in accordance with the provisions of this clause or otherwise any time specified for delivery under the Contract shall be extended for such period as SBA may reasonably require.

9.4 Subject to clause 9.10, in the event of any negligence by SBA its employees or agents in or in connection with the supply of the Goods or the design or manufacture thereof, SBA shall have no liability to the Buyer save as expressly set out in clause 9.2.1.

9.5 SBA shall have no liability to the Buyer for any defect in or failure of the Goods:

9.5.1 where payment has not been made by the Buyer by the due date; or

9.5.2 in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the manufacturer’s instructions, misuse or alteration or unauthorised repair of the Goods; or

9.5.3 the Buyer makes any further use of the Goods after notifying SBA of any defect or failure.

9.6 Subject to and without prejudice to the other provisions of this clause 9 and clause 4.2 SBA’s liability (if any) for any loss, damages, costs or expenses, whether in contract, tort (including but not limited to negligence) or otherwise shall not exceed the Contract price for that Contract.

9.7 SBA shall in no circumstances be liable for any pure economic loss, loss of profits, loss of business, loss of contracts, depletion of goodwill or otherwise in each case whether direct, indirect or consequential, or for any claims for consequential compensation whatsoever (however caused which arise out of or in connection with any Contract).

9.8 SBA shall in no circumstances be liable for any indirect or consequential losses (including but not limited to damage to reputation), damages, costs or expenses of the Buyer.

9.9 These conditions state the full liability of SBA to the Buyer (whether in contract or in tort (including but not limited to negligence) or for breach of statutory duty or otherwise) to the Buyer under or arising out of any Contract. All Goods are supplied with the benefit of the term implied by section 12 of The Sale of Goods Act 1979. Subject to this and except where the Buyer is a Consumer, SBA hereby expressly excludes from all Contracts any other conditions and warranties, express or implied as to the quality, description or fitness for any particular purpose of the Goods or any part thereof, and every other term, condition or duty at common law, under any legislation or regulations or otherwise for any damage, costs, expenses, losses or other claims suffered or incurred by the Buyer arising out of or in connection with the supply of or failure to supply the Goods or their use or resale, except as expressly provided in these Conditions.

9.10 Nothing in these conditions limits or excludes, or is intended to limit or exclude SBA’s liability for death or personal injury caused by its negligence, nor for fraud or fraudulent misrepresentation nor for any matter which it would be illegal for SBA to exclude or attempt to exclude its liability.

9.11 Nothing in these conditions shall exclude or restrict any liability SBA may have under the provisions of The Consumer Protection Act 1987.

9.12 SBA shall not be liable for any failure to perform its obligations under any Contract to the extent that such performance is prevented or hindered by acts of God, failure of suppliers to comply with their obligations, insolvency of suppliers, war, riot, sabotage, explosions, strikes, lockouts, shortages of labour, materials or fuel, fire, storm, flood or any circumstances which are outside the control of SBA.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 All intellectual property rights in the Goods shall remain vested in SBA or SBA’s suppliers or the manufacturer of the Goods (as the case may be).

10.2 The Buyer is not authorised to use any of SBA’s trade marks or logos.

11. CANCELLATION AND TERMINATION

11.1 Save as specified in clauses 5, 6.1 and 6.2 no cancellation, suspension or variation of the Contract by the Buyer shall be valid unless agreed by SBA in writing and such agreement will only be given on terms which compensate SBA fully in respect of any losses, costs and expenses arising as a result of such cancellation.

11.2 Without prejudice to the generality of clause 11.1 SBA reserves the right to charge a handling fee of up to 15% of the Contract Price where it agrees to the return of non-defective Goods except where these are returned by a Consumer under the provisions of clause 5.1.

11.3 If there shall be an Event as defined in clause 11.4 below SBA may, within a reasonable time after the Event defer or cancel any further deliveries, or services, stop any Goods in transit and/or treat the Contract (and any other order or arrangement received by or with SBA from the Buyer) as determined but without prejudice to its rights to the full purchase price for Goods delivered and damages for any loss, cost, expense, liability or claim suffered by SBA in consequence of such determination.

11.4 An Event shall be any of the following:

11.4.1 failure by the Buyer to make any payment when it becomes due;

11.4.2 breach of contract by the Buyer; or

11.4.3 the Buyer exceeds the credit limit set by SBA;

11.4.4 if the Buyer becomes bankrupt or insolvent or has a petition presented in respect of a winding up order in respect of it or has an order made for the appointment of an administrator to manage the affairs, business and property of it or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or any of its directors or a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986) levied upon its assets or under the national law of its own country suffers the equivalent of any of them, or takes any step with a view to entering into a voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986); or

12. DATA PROTECTION

13. RECALLS AND HEALTH & SAFETY

13.1 If the Buyer is not conversant with possible hazards relating to the Goods shown on the Website or on other materials issued by SBA it is the Buyer’s responsibility to ask SBA for the relevant information and to supply such information to all users and purchasers thereof who receive or purchase the Goods from the Buyer.

13.2 The Buyer agrees that SBA may at its discretion and at any time institute a recall of any Goods sold by SBA to the Buyer (in which case SBA shall at its own option provide a refund or a credit or a replacement (at its option) of such Goods) and/or issue any warnings or other notices to its customers in relation to the Goods and/or their use and/or sale.

13.3 The Buyer agrees and undertakes:

13.3.1 to notify SBA promptly of all complaints of which the Buyer becomes aware in relation to the Goods and to deal with any claims or other issues made or raised by third parties in relation to the Goods as directed by SBA;

13.3.2 to comply at all times with all written guidelines and instructions in respect of the Goods relating to their use, application and storage;

13.3.3 to ensure that all persons having responsibility for the storage and/or use of the Goods have all necessary health and safety information relating to such Goods; and

13.3.4 to assist and co-operate at its own expense with SBA in respect of any recall of the Goods as referred to in clause 13.2.

14. GENERAL

14.1 Each right or remedy of SBA under the Contract is without prejudice to any other right or remedy of SBA whether under the Contract or not.

14.2 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.

14.3 Failure or delay by SBA 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.

14.4 Any waiver by SBA 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.

14.5 No term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any third party.

15. LAW AND JURISDICTION

15.1 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.