South West Gas Supplies Limited
Terms and Conditions of Supply
In these Conditions, unless the context requires otherwise:
Conditions means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Supplier;
Contract means a contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions
Delivery Date means the date when the Goods are to be delivered, as specified by the Supplier;
Distributor means the person who buys or agrees to buy or be supplied with Goods from or by the Supplier;
Distributor List means the list of persons authorised by the Supplier to act as Distributors as the same is amended from time to time by the Supplier
Goods means the articles which the Distributor agrees to buy from or be supplied with by the Supplier including, without limit, gas, cylinders, stillage and any related items or accessories;
Price means the price for the Goods excluding carriage, packing, insurance and VAT; and
Supplier means South West Gas Supplies Limited (co no 075259344) whose registered office is at Poplar Farm, Eastertown, Lympsham, Somerset, BS24 0HY
1 Conditions applicable
These Conditions shall apply to all contracts for the supply of Goods by the Supplier to the Distributor to the exclusion of all other terms and conditions, including any terms or conditions which the Distributor may purport to apply under any purchase order, confirmation of order or similar document or which are implied by trade, custom, practice or course of dealing.
An order shall only be deemed to be accepted when the Goods leave the Supplier's premises at which point the Contract shall come into existence. In any event, acceptance of delivery of the Goods shall be deemed conclusive evidence of the Distributor's acceptance of these Conditions.
Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Supplier.
The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's promotional material are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
A quotation for Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
2 Price and payment
The Price shall be the Supplier's standard price in force from time to time.
Delivery of full stillage (or part stillage with a minimum of 12 cylinders) is free of charge. In any other case, a delivery contribution may, at the discretion of the Supplier, be charged at the Supplier's standard rate.
The Price is exclusive of VAT, which shall be due at the rate applicable on the date of the Supplier's invoice.
Payment of the Price and VAT shall be due within 30 days of the end of the month in which the invoice is issued.
Time for payment shall be of the essence
Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment, at a rate of 3% above Lloyds Bank plc's base rate from time to time in force, and shall accrue at such a rate after as well as before any judgment.
The Distributor shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Distributor against any amount payable by the Supplier to the Distributor.
A deposit will be charged in respect of each cylinder and stillage at the Supplier's standard rate that is applicable at the time of sale. The Supplier can identify the deposit charged to the Distributor by the asset tag that is fixed to the Container, if the asset tag is removed or lost the Supplier will only credit the basic surcharge.On the return of one of the Supplier's cylinders or stillage a credit of the amount of the deposit will be credited to the Distributor's account to be offset against future invoices.
3 The Goods
The description of the Goods shall be as set out on the Supplier's website.
The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
The Distributor shall not and shall not allow any party (and shall procure that no other party shall or shall allow any party):-
3.3.1 to fill the Supplier's cylinders
3.3.2 to tamper with or alter in any way with the cylinders or plastic stillages (or any labels attached to them
and if there is in the Supplier's discretion any evidence of any breach of this term the Supplier reserves the right to require the Distributor to and the Distributor shall indemnify the Supplier in respect thereof.
4 Warranties and liability
The Supplier warrants that the Goods supplied will at the time of delivery correspond to the description given by the Supplier. All other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise, are excluded to the fullest extent permitted by law.
The Supplier shall not be liable for Goods' failure to comply with the warranty set out in condition 4.1 in any of the following events:
4.2.1 The Distributor makes any further use of such Goods after giving notice in accordance with condition 4.1;
4.2.2 The defect arises because the Distributor (or the Distributor's customer) failed to follow the Supplier'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;
4.2.3 The Distributor (or the Distributor's customer) alters or repairs such Goods without the written consent of the Supplier;
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
The Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
Provided that the Distributor has complied with condition 5, the Supplier's sole liability in respect of any breach of the warranty set out in condition 4.1 shall, at its option, to repair or replace faulty Goods, or refund the price of the defective Goods in full
Except as provided in this condition 4, the Supplier shall have no liability to the Distributor in respect of the Goods' failure to comply with the warranty set out in condition 4.1.
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.
5 Delivery of the Goods and Returns
Delivery of the Goods shall be made to the Distributor's address (or such other address as the Distributor may notify the Supplier in writing) on the Delivery Date. The Goods may be delivered in advance of the Delivery Date upon the giving of reasonable notice to the Distributor. The Distributor shall make all arrangements to take delivery of the Goods whenever they are tendered for delivery.
Any dates quoted for delivery and collection are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery or collection of the Goods that is caused by any reason beyond the Supplier's reasonable control or the Distributor's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
Deliveries will be made on a tail lift vehicle, on a wooden pallet or plastic stillage. A deposit will be charged but may at the Supplier's discretion be rebated provided that the Distributor is on the then current Distributor List. It is the Distributor's responsibility to have the necessary equipment to move the pallet or stillage from the delivery truck to the Distributor's premises.
The Supplier reserves the right to levy a cleaning charge to be deducted from any deposit paid up to the amount equal to the cost of a new cylinder if an empty cylinder is returned otherwise than in a clean (including without limit without stickers or felt pen markings) and in a serviceable condition.
6 Acceptance of the Goods
Where a cylinder has been reported as faulty the Distributor must tag the item as faulty giving a description of the fault reported and return it with the next batch of empty cylinders with a completed warranty form (as provided by the Supplier).
7 Title and risk
Cylinders and stillages are provided by the Supplier only as a means of transporting and supplying gas. They remain the property of the Supplier at all times and neither the Distributor nor any person to whom the Distributor supplies them (whether or not in the ordinary course of the Distributor's business) shall acquire any right title or interest in them.
Title in Goods other than cylinders or plastic stillages shall not pass to the Distributor until the Supplier receives payment in full (in cash or cleared funds) for the Goods provided that the Distributor shall be entitled to resell the Goods in the ordinary course of its business.
Until title to the Goods has passed to the Distributor, the Distributor shall:
store the Goods separately from all other goods held by the Distributor so that they remain readily identifiable as the Supplier's property;
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
give the Supplier such information relating to the Goods as the Supplier may require from time to time; and
Allow (or procure) access to the premises at which the Goods are kept to enable the Supplier to collect them.
Risk shall pass on delivery of the Goods.
8 Remedies of Distributor
If the Distributor rejects any Goods, save as expressly set out in these conditions, the Distributor shall have no further rights whatever in respect of the supply to the Distributor of such Goods or the failure by the Supplier to supply Goods which conform to the contract of sale.
If the Distributor accepts or has been deemed to have accepted any Goods, then the Supplier shall have no liability whatever to the Distributor in respect of those Goods.
If the Distributor fails to pay any amount due under a Contract on the due date for payment or is in material breach of any of these conditions, then the Supplier may terminate a Contract with immediate effect by giving written notice to the Distributor.
In the event of termination of a Contract:-
without limiting its other rights or remedies and without liability to the Distributor, the Supplier may suspend provision of the Goods under that Contract or any other contract between the Distributor and the Supplier; and
the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
10.1 Assignability. The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under a Contract. The Distributor may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier or e-mail. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to above, if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
Severance. If any provision or part-provision of a Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract. If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall 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. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
Governing law. The 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 the law of England and Wales.