Terms of Business
1.1 These Terms apply to the Contract between Brymec and the Customer for the sale of Brymec Products. Any other terms, whether implied by custom or practice, or which the Customer may seek to include, are specifically excluded.
1.2 Capitalised words (such as ‘Contract’), have a specific meaning which is set out in 12 below.
2. CONTRACT TO BUY PRODUCTS
2.1 The Products are described on Brymec’s website and in its catalogue. Specifications for Products are subject to change, in which case, Brymec will endeavour to supply an equivalent or suitable alternative.
2.2 When the Customer wishes to place an order for Products, it will provide a purchase order to Brymec. If Brymec accepts such order, it will issue an Order Acceptance to the Customer, at which point the Contract shall come into existence.
2.3 The Customer is responsible for ensuring that the details in the Order Acceptance are complete and accurate.
3.1 Each delivery of the Products will be accompanied by a delivery note that shows the date of the Order Acceptance, the relevant Brymec reference number, and the type and quantity of the Products.
3.2 Brymec shall deliver the Products to the Delivery Location at any time after Brymec notifies the Customer that the Products are ready.
3.3 Delivery is completed on the completion of unloading of the Products at the Delivery Location (and, if applicable, Signed For.)
3.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Brymec shall use all reasonable commercial efforts to meet any specific delivery dates. However, Brymec will not be liable for any delay in delivery of the Products.
3.5 If Brymec fails or is unable to deliver the Products for any reason (except for an Unforeseen Event), its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products. Brymec shall have no liability for any failure to deliver the Products to the extent that such failure is caused by an Unforeseen Event, or the Customer’s failure to provide Brymec with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
3.6 Brymec may deliver the Products by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.1 Brymec warrants that, on delivery, the Products shall conform in all material respects with their description and any applicable Specification. For products sold by weight, or in the manufacturer’s packaging, Brymec may supply quantities of up to 5% more or less than the amount ordered.
4.2 Subject to 4.3 below, if i) the Customer gives notice in writing to Brymec within 2 business days of delivery that the Products do not comply with the Specification, and ii) Brymec is given a reasonable opportunity to examine such Products, and iii) the Customer returns such Products to Brymec’s place of business at the Customer’s cost, Brymec shall, at its option, replace the defective Products or refund the price of the defective Products in full.
4.3 Brymec shall not be liable for the Products' failure to comply with the warranty set out in clause 4.1 if: i) the Customer makes any further use of such Products after giving notice under 4.2 above; ii) the defect arises because the Customer failed to follow good trade practice or instructions as to the storage, commissioning, installation or use of the Products; or iii) the Customer alters or attempts to repair such Products.
4.4 Other than as set out above, Brymec shall have no liability to the Customer in respect of the Products' failure to comply with the warranty set out in clause 4.1.
5. TITLE AND RISK
5.1 The risk in the Products shall pass to the Customer on completion of delivery.
5.2 Title to the Products shall not pass to the Customer until the earlier of: i) Brymec receives payment in full for the Products; and ii) the Customer resells the Products, in which case title to the Products shall pass to the Customer at the time specified in 5.4 below.
5.3 Until title to the Products has passed to the Customer, the Customer shall store the Products separately from all other products held by the Customer so that they remain readily identifiable as Brymec’s property, maintain the Products in satisfactory condition, and keep them insured against all risks for their full price from the date of delivery.
5.4 The Customer may use or resell the Products before Brymec receives payment for the Products, in which case it does so as principal and not as Brymec’s agent, and title to the Products shall pass from Brymec to the Customer immediately before the time at which such reuse or resale by the Customer occurs.
6. PRICE AND PAYMENT
6.1 The price of the Products shall be the price set out in the Order Acceptance issued by Brymec. Brymec may, by giving notice to the Customer at any time up to delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to i) any factor beyond Brymec’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs), or ii) any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Specification.
6.2 The price of the Products excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay.
6.3 Unless otherwise stated on the Order Acceptance, Brymec shall be responsible for the cost of insurance and transport of the Products to the Delivery Location.
6.4 Brymec may invoice the Customer for the Products on or at any time after the Products have been despatched.
6.5 Unless otherwise stated in the Order Acceptance, the Customer shall pay the invoice in full and in cleared funds by the end of the month following the month the invoice was dated to the bank account nominated by Brymec. Time for payment is of the essence.
6.6 If the Customer fails to make any payment due to Brymec under the Contract by the due date for payment, then Brymec shall be entitled to charge interest on the overdue amount at the rate of 4.0% per annum above the base rate from time to time of the Bank of England. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim or deduction. Brymec may set off any amount owing to it by the Customer against any amount payable by Brymec to the Customer.
7. LIMITATION OF LIABILITY AND INSURANCE
7.1 Nothing in these Terms shall limit or exclude Brymec’s liability for: (i) death or personal injury caused by its negligence; ii) fraud or fraudulent misrepresentation; iii) breach of the terms implied by section 12 of the Sale of Products Act 1979; or defective products under the Consumer Protection Act 1987.
7.2 Subject to 7.1 above, Brymec shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
7.3 Brymec has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000,000 per claim. Therefore, Brymec’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, or otherwise, shall in no circumstances exceed £1,000,000, and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
8. UNFORESEEN EVENTS
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from an Unforeseen Event. If the period of delay or non-performance continues for three months, the party not affected may terminate this Contract by giving one months’ written notice to the affected party.
9.1 Assignment. The Customer may not assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract without Brymec’s prior written consent.
9.2 Confidentiality. Each party undertakes that it shall not at any time during this agreement, and for a period of 5 years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this paragraph. Each party may disclose the other party’s confidential information: (i) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out its obligations under or in connection with the Contract; and (ii) as may be required by law. 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 this agreement.
9.3 Entire agreement. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
9.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
9.5 Third party rights. No one other than a party to this Contract shall have any right to enforce any of its terms.
9.6 Law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with the law of England and Wales. Each party agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract.
10.1 Brymec: Brymec Limited, whose registered office is at Unit C, Redlands, Coulsdon, Surrey, CR5 2HT.
10.2 Terms: the terms set out in this document.
10.3 Contract: the contract between Brymec and the Customer for the sale and purchase of the products in accordance with these terms
10.4 Customer: the business or person who purchases the Products from Brymec.
10.5 Delivery Location: the location for delivery of the Products set out in the Order Acceptance, or such other location as the parties may agree.
10.6 Order Acceptance: a form issued by Brymec in response to a Customer’s order for Products, specifying Product details, quantities, prices and costs of transportation.
10.7 Products: the products (or any part of them) set out in the Order Acceptance.
10.8 Signed For: a Customer requirement stated in the Order Acceptance that a delivery of Product must be signed for at the Delivery Location.
10.9 Specification: any specification for the Products set out on Brymec’s website or in its catalogue.
10.10 Unforeseen Event: an event or circumstance beyond a party's reasonable control.