SILENTNIGHT GROUP LIMITED (“THE COMPANY”) - CONDITIONS OF SALE

1. IN THESE CONDITIONS:

1.1 The “Goods” and/or the “Services” means the articles or things, or the facilities or any of them described in the Contract.

1.2 The “Buyer” means the person, firm or company with whom the contract is made by the Company for the sale of the Goods or supply of Services.

1.3 The “Contract” means these Conditions of Sale, the Buyer’s order for the Goods or Services and the Company’s acknowledgement of order (if any), and if there is any inconsistency between the documents comprising the Contract or with the terms of any order, letter or form of contract sent by the Buyer, whatever their respective dates, these conditions will prevail except where the Company has expressly agreed otherwise in writing. 

1.4 “Applicable Data Protection Laws”:  means:

a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.

b) To the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.

1.5 A reference to writing or written excludes fax and email.

2. ORDERS

2.1 These Conditions apply to the Contract and are deemed to be incorporates in all contracts of the Company with the Buyer, to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2 Acceptance of the Buyer’s order is subject to supplies being available and unsold and is only effective where the Company has confirmed acceptance of the order in writing by way of a Sales Order Confirmation or such other form as may have been expressly agreed by the Company.

2.3 The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Buyer are complete and accurate.

3. RISK AND TITLE TO GOODS

3.1 Risk in the Goods shall pass to the Buyer on delivery and the Buyer shall keep the Goods insured in the full replacement value thereof against all insurable risk.

3.2 Title to the Goods shall not pass to the Buyer until the earlier of:

a) the Company receives payment in full (in cash or cleared funds) for the Goods (including any default interest) and any other goods that the Company has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; or

b) the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in Clause 3.4.

3.3 Until title to the Goods has passed to the Buyer, the Buyer shall:

a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Company's property;

b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and

d) give the Company such information as the Company may reasonably require from time to time relating to:

i) the Goods; and

ii) the ongoing financial position of the Buyer.

3.4 Subject to Clause 3.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Buyer resells the Goods before that time:

a) it does so as principal and not as the Company’s agent; and

b) title to the Goods shall pass from the Company to the Buyer immediately before the time at which resale by the Buyer occurs.

3.5 At any time before title to the Goods passes to the Buyer, the Company may:

a) by notice in writing, terminate the Buyer's right under Clause 3.4 to resell the Goods or use them in the ordinary course of its business; and

b) require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Buyer fails to do so promptly, the Company, its employees or agents may enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them. The Company shall have the right to re-sell such Goods in addition to any power of sale arising by operation of law or otherwise.

4. DELIVERY

4.1 Unless otherwise agreed by the Company and the Buyer in writing, the Company shall deliver the Goods to the Buyer at the Buyer’s premises.

4.2 The Buyer is responsible for ensuring it has provided an accurate delivery address and delivery instructions to the Company. 

4.3 All dates given for delivery of the Goods are given in good faith but are approximate only and time shall not be of the essence.

4.4 The Company shall not be liable for any delay in delivery of the Goods that is caused by:

a) a Force Majeure Event; 

b) Any other delay beyond the reasonable control of the Company; or 

c) the Buyer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5 The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, any other delay beyond the reasonable control of the Company, or the Buyer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6 Subject to clause 4.5, if the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Claims for non-delivery must be notified to the Company immediately (and in any event within seventy-two (72) hours) on receipt of invoice. 

4.7 Goods or Services may be supplied by instalments, and if the delivery of the Goods or performance of Services is made by instalments, the Company may invoice each instalment separately and may suspend delivery or performance of further instalments until the Company receives payment in full (in cash or cleared funds) for all Goods (including any default interest) and any other goods that the Company has supplied to the Buyer in respect of which payment has become due. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.

4.8 The Buyer agrees to take delivery of Goods or Services on the stated delivery date(s) (or such alternative date(s) as may be agreed with the Company) and will reimburse the Company in full for any costs and expenses incurred by the Company if delivery fails as a result of the Buyer’s act or omission, including where the Buyer has provided an incorrect delivery address. 

4.9 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.

5. PRICE AND PAYMENT

5.1 All prices quoted by the Company are ex-works and are exclusive of VAT unless otherwise stated.

5.2 If no price is quoted, the price shall be that set out in the Company's published price list in force as at the date of invoice. 

5.3 The price for Goods will be that applicable on the date of issue of invoice and excludes carriage unless otherwise stated.

5.4 In the event that any import or export duties are payable on the products, they are not included in the price of the product, and shall be payable by the Buyer. The Supplier shall not be responsible for the payment of any import or export duties under the Contract. 

5.5 Except as agreed in writing by the parties, payment for Goods and/or Services shall be due 30 days following the last day of the month of issue of the invoice in cleared funds without deduction, set off or counterclaim.

5.6 Except as agreed in writing by the Company, the Buyer is not entitled to any discount or reduction of the monies due in relation to an invoice in exchange for early payment of invoices. 

5.7 If the Buyer fails to pay in accordance with the Contract, the Company may, without prejudice to any other right or remedy available to it, do any of the following: -

a) suspend all further deliveries and/or the performance of any Services without notice to the Buyer;

b) serve notice on the Buyer to make immediate payment for all Goods or Services supplied or contracted to be supplied under this or any other contract with the Buyer, whether or not such payment would otherwise be due;

c) sue for the price of Goods and/or Services even if in the case of Goods title may not have passed to the Buyer

5.8 If the Buyer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company's remedies under Clause 5.7, the Buyer 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 5.8 will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 8% a year for any period when that base rate is below 0%.

5.9 The Company reserves the right to refuse or withdraw credit facilities at any time.

5.10 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).

6. SPECIFICATION, DAMAGE, SHORTAGE OR LOSS

6.1 The information contained in marketing, sales and/or technical literature relating to Goods and Services is for guidance only and shall not form part of the Contract. 

6.2 The Company reserves the right to alter the dimensions, design or appearance of the Goods from time to time to comply with applicable standards, test results, laws or regulations and will use all reasonable efforts to advise the Buyer of any actual or proposed changes. Such changes will not entitle the Buyer to cancel the Contract or any delivery or give rise to any claim against the Company.

6.3 The Buyer shall be deemed to have inspected the Goods on delivery and must notify any damage or shortage to the Company in writing promptly (and in any event within seventy two (72) hours) following delivery. 

6.4 Any damage which is not apparent by inspection must be notified to the Company immediately on discovery and the Buyer will not alter, amend or otherwise deal with any Goods so affected until and unless the Company has had the opportunity to inspect the affected Goods and agreed that the Buyer may do so. Goods returned to the Company without the Company’s prior written consent will not be accepted for credit.

6.5 If the Buyer does not give notice in accordance with the Contract, the Goods shall be deemed to conform and be delivered in all respects in accordance with the Contract and the Buyer shall be deemed to have accepted the Goods.

7. EXCLUSION OF LIABILITY

7.1 The limits and exclusions in this clause reflect the insurance cover the Company has been able to arrange and the Buyer is responsible for making its own arrangements for the insurance of any excess liability.

7.2 References to liability in this Clause 7 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

7.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

a) death or personal injury caused by negligence;

b) fraud or fraudulent misrepresentation;

c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; and

d) defective products under the Consumer Protection Act 1987.

7.4 The Company shall not be liable for loss or damage to Goods by reason of  

a) fair wear and tear, 

b) the Buyer’s attempting to repair or alter Goods without the Company’s consent, or

c) the storage or handling of the Goods by the Buyer.

7.5 Subject to Clause 7.3, the following types of loss are wholly excluded:

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;

g) indirect or consequential loss; and 

h) Wasted expenditure. 

7.6 Subject to clause 7.3, the Company’s liability is limited to the total price of the Goods under the Contract. 

7.7 Unless a party notifies the other party that it intends to make a claim in respect of an event within the notice period, the other party shall have no liability for that event. The notice period for an event shall start on the day on which the party wishing to make a claim became, or ought reasonably to have become, aware of the event having occurred and shall expire six (6) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail. 

7.8 This clause 7 shall survive the duration of the Contract. 

8. CANCELLATION

8.1 Cancellation by the Buyer must be made in writing and received at least 14 working days before the given date of delivery of the Goods or supply of the Services. The Buyer will pay any additional costs and expenses of the Company resulting from cancellation.

8.2 Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Buyer if:

a) the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen (14) days of that party being notified in writing to do so;

b) the Buyer 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;

c) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

d) the Buyer'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.

8.3 Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Company if the Buyer becomes subject to any of the events listed in Clause 8.2(b) to Clause 8.2(d), or the Company reasonably believes that the Buyer is about to become subject to any of them. 

8.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Buyer immediately on receipt.

8.5 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. FORCE MAJEURE

9.1 Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for six (6) months, the party not affected may terminate the Contract by giving thirty (30) days written notice to the affected party.

10. GENERAL

10.1 The Buyer may not assign the benefit of this Contract without the Company’s prior written consent. 

10.2 The Company may assign or sub-contract the whole or any part of the Contract.

10.3 The invalidity or unenforceability of any of these conditions shall not affect the remaining conditions, which shall remain in full force and effect and where appropriate the invalid or unenforceable provision shall be replaced by a valid provision corresponding as far as possible with the void provision.

10.4 Waiver, delay or failure to exercise any right or remedy by the Company will not affect its ability to exercise such right or any other right, nor will the exercise of any such right or remedy prevent any further exercise of that or any other right or remedy by the Company.

10.5 Third party rights which may otherwise arise under the Contracts (Rights of Third Parties) Act 1999 or any replacement are excluded under the Contract.

10.6 The Contract shall be exclusively subject to the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction under this contract. 

10.7 No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

10.8 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). Any notice shall be deemed to have been received:

a) if delivered by hand, at the time the notice is left at the proper address; or 

b) 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. 

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.

11. DATA PROTECTION 

11.1 For the purposes of this Clause 11, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.

11.2 In order to give effect to the terms of these terms and conditions, the parties may from time to time process personal data. When processing data under this agreement, both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This Clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.

11.3 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.

11.4 In order to fulfil its obligations under this agreement, the Company may process personal data in relation to these terms and conditions. Where the Company processes at personal data it shall do so in line with Applicable Data Protection Laws and its Privacy Policy https://www.silentnight.co.uk/privacy

11.5 In the event that either Party receives a data subject request, the parties shall provide the other party with reasonable assistance in complying with any data subject rights request. 

11.6 Any liability arising from a breach of this Clause 11 is subject to the terms and limits set out in Clause 7.