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Terms and conditions of KV Supplies
During the continuance of the Agreement into which this document is incorporated (the “Agreement”), KV Supplies shall supply and the Purchaser shall purchase subject to these KV Supplies Terms. Definitions in the Agreement shall also apply in these KV Supplies Terms. In the event of any conflict between these KV Supplies Terms and the terms of the Agreement, the terms of the Agreement shall take precedence.
1. Supplies, specifications and related prices.
1.1 Goods and services
The Goods and/or Services, the Specifications, and the related Prices (as set out in the KV Supplies Catalogues and Website as updated from time to time). KV Supplies reserves the right to amend the Prices without notice (unless otherwise agreed in writing with the Purchaser). Unless an exempt supply, all Prices are subject to VAT which will be an additional charge and the responsibility of the Purchaser (the Purchaser to produce satisfactory evidence regarding the VAT status of any supply). If the cost of packaging, insurance and carriage are not specifically included in the Price, these will be additional charges and the responsibility of the Purchaser.
1.2 KV Supplies catalogue
Details within KV Supplies Catalogues and Website (including descriptions, illustrations, specifications, technical information etc.) are as supplied by manufacturers and should be used as guidance. KV Supplies relies on the information provided by the manufacturers and (subject to the operation of law) provides no guarantee that any goods will conform exactly to such Catalogues and Website. The Purchaser must satisfy itself in relation to the suitability of any goods ordered. KV Supplies reserve the right to amend the specification of products or withdraw products from, its Catalogues and Website at any time.
2. Orders
2.1 Purchaser's orders
No terms or conditions endorsed on a Purchaser’s order, specification, or similar document will form part of the contract between the parties. By placing an order, the Purchaser acknowledges acceptance of the KV Supplies Supply Terms and the terms of the Agreement.
2.2 Goods
It may not be possible to despatch all the Goods ordered at the same time. KV Supplies reserves the right to despatch separate items in instalments. KV Supplies will use its reasonable endeavours to advise Purchasers of the anticipated despatch dates of the instalments and to deliver in accordance with anticipated despatch dates. However, KV Supplies shall not be liable for the consequences of any failure to notify the Purchaser of anticipated despatch dates or any delay beyond the anticipated despatch date.
2.3 Services
KV Supplies and the Purchaser shall agree times and places for the performance of Services. Otherwise, KV Supplies shall use its reasonable endeavours to perform them within a reasonable time in the circumstances.
2.4 Delivery Acceptance
Acceptance of delivery of any of the Goods or acceptance of performance of any of the Services shall be deemed further conclusive evidence of the Purchaser’s acceptance of these KV Supplies Supply Terms and the terms of the Agreement.
2.5 Order termination
Failure to notify of any delay shall not on its own entitle the Purchasers to terminate the contract or withhold payment against KV Supplies’s invoice. Unless otherwise agreed in writing with KV Supplies, the Purchaser shall not be entitled to cancel any order for Goods and/or Services once the first instalment of the Goods and/or the first performance of the Service has been despatched/performed by KV Supplies.
2.6 Advance payments and credit references
Purchasers may be asked to make a payment in advance for goods and/or Services against KV Supplies’s pro-forma invoice or provide a suitable credit reference or such other proof of credit worthiness as KV Supplies may require at its sole discretion before supply.
3. Terms of payment
3.1 Payment procedure
Unless subject to separate agreed arrangements, the Purchaser shall pay KV Supplies within 7 days of the date of KV Supplies’s invoice. If the Purchaser fails to make payment on the due date, KV Supplies shall be entitled to charge the Purchaser interest at the annual rate of 3% above the base rate of Barclays Bank plc. Unless otherwise agreed with KV Supplies or required by law, the Purchaser shall not be entitled to make any set off in respect of amounts due to KV Supplies.
4. Delivery, risk and title of the goods
4.1 Delivery address information
Unless subject to separate arrangements agreed between an authorised representative of KV Supplies and the Purchaser, the Purchaser may nominate one principal delivery address in the United Kingdom during the continuance of this Agreement. Deliveries to any other address may be subject to a minimum despatch quantity or additional charges.
4.2 Risks in goods
Risk in Goods shall pass to the Purchaser upon delivery of the same to the Purchaser or the Purchaser’s agents, or to a place of delivery nominated in writing by the Purchaser.
4.3 Ownership of the goods
Ownership of the goods remains with KV Supplies until it receives payments in full by or on behalf of the Purchaser of all sums due. Property in the Goods shall pass to the Purchaser at the time when cleared funds are received by KV Supplies (and not earlier). Until ownership of the Goods passes to the Purchaser, the Purchaser shall be the bailee of the Goods for KV Supplies and the Purchaser shall ensure that the goods can be identified and shall not incorporate them into another product.
4.4 Termination of the purchaser's order by KV Supplies
KV Supplies's consent to the Purchaser’s possession of the Goods and any right the Purchaser may have to possession of the Goods shall cease at whichever is the earliest of the following events:* if any sum due under the terms and conditions is not paid to KV Supplies by or on behalf of the Purchaser on or
before the date when it is due;
* if the Purchaser, not being a company, applies for an interim order or proposes voluntary arrangement with its
creditors under Part VIII of the Insolvency Act 1986 or does or fails to do anything which would entitle a Petition
for bankruptcy order to be presented;
* if the Purchaser, being a company, does or fails to do anything which would entitle any person to appoint a
receiver of the whole or any part of the Purchaser’s assets or which would entitle any person to present a
Petition for an administration order to the Winding Up of the Purchaser, or which would lead to a Voluntary
Liquidation.
4.5 The reclamation of goods by KV Supplies Ltd Supplies
KV Supplies may for the purpose of inspecting or recovering the goods enter upon any premises where they are stored or where KV Supplies reasonably believes them to be stored and may receive and remove them accordingly. The Purchaser agrees to co-operate with KV Supplies accordingly and in the case of it insolvency shall return KV Supplies’s goods to it upon request and/or allow them to be recovered by KV Supplies.
5. Confidentiality
5.1 Terms of confidentiality
Each party acknowledges and agrees that any and all information concerning the other’s business or the terms of the Agreement including these KV Supplies Supply Terms is confidential (hereinafter referred to as “Confidential Information”) and each party agrees that it shall not permit the duplication, use or disclosure of any such Confidential Information to any person (other than its own employee, agent or sub- contractor where the same requires such information for the performance of the Agreement) unless such duplication, user or disclosure is specifically authorised in writing by the other party, or is required by the operation of Law. Confidential Information does not include information, which at the time of disclosure is generally known by the public (other than by the unauthorised act of the disclosing party). The parties shall take all reasonable steps to ensure that their employees, agents and sub-contractors keep Confidential Information confidential.
6. Data protection
6.1 Compliance
Each party undertakes to comply at all times with the Data Protection Act 1998 (the “DPA”) to the extent it processes any personal data or sensitive personal data on behalf of the other. “Personal data” and “sensitive personal data” shall have the meanings given in the DPA.
6.1.1
In particular, but without limitations, each party shall:* only carry out processing of such data in accordance with the other’s instructions
* only disclose it to or allow access to it by those of its employees (or agents or sub-contractors) who are
familiar with data protection requirements and whose use of such data relates to their job or function;
* assist the other with all subject information requests received from data subjects.
6.1.2
For the avoidance of doubt, neither party (or its agents or sub-contractors) shall acquire any rights in any of the other’s personal data or sensitive personal data and shall only be entitled to process it in accordance with its contractual obligations. On termination of the contract each party (or its agents or sub-contractors) shall immediately cease to use the same and shall arrange for its safe return or destruction as shall be agreed with the other at the relevant time.
6.1.3
Each party agrees to indemnify the other against any action, costs, liabilities, losses, damages and expenses which the other may suffer or incur as a result of any breach by the former of any of the undertakings given in this Clause.
7. Intellectual property
7.1 Ownership of intellectual property
Each party confirms that it owns, or has all necessary rights in the use of, all intellectual property in relation to the Goods and/or Services (and the related Catalogues/Website/literature) and each acknowledges that such intellectual property shall remain the property of, or the rights in the use of shall remain with the originating party, unless otherwise agreed in writing between the authorised representatives of KV Supplies and the Purchaser.
7.2 Compensation
Each party agrees to indemnify the other against any actions, costs, liabilities, losses, damages and expenses which the other may suffer or incur as a result of any claim by a third party in relation to ownership or use of any relevant intellectual property.
8. Force Majeure
8.1 Force Majeure
Neither party will be liable to the other for any failure or delay or for the consequences of any failure or delay in performance of this Agreement if it is due to any event beyond the reasonable control and contemplation of a party to this Agreement including, without limitation, acts of God, war, industrial disputes, protests, fire, flood, storm, tempest explosion, an act of terrorism and national emergencies.
9. Warranties
9.1 Warranties on goods
KV Supplies warrants providing goods which in all material respects are fit for purpose and of satisfactory quality.
9.2 Warranties on services
KV Supplies warrants to provide services with all the care and skill to be expected of a qualified and competent contractor experienced in undertaking services of the same kind as the Services.
9.3 Our replacement and repair provisions
If the goods supplied are in breach of Clause 9.1, KV Supplies will at its option repair or replace (as detailed below) or refund the Purchaser the relevant Price. In the case of replacement, KV Supplies will, subject to availability of stock, within a period of four weeks from the date of written notice from the Purchaser replace any goods which are proved to the reasonable satisfaction of KV Supplies to contain defects in material or workmanship. This obligation will not apply where: * the goods have been improperly altered in any way whatsoever, or have been subjected to misuse or
unauthorised repair; or:
* in the case of their fitness for purpose, the Goods were produced in accordance with the Purchasers
particular specification etc; or
* the damage is due to reasonable wear and tear; or
* the Purchaser has failed to notify KV Supplies of any defect or suspected defect within seven days of the
delivery in question where the defect should be apparent on reasonable inspection or within 14 days of the
same coming to the knowledge of the Purchaser where the defect is not one which should be apparent on
reasonable inspection.
9.4 Returns
All returns must be accompanied by the original receipt and a receipt in respect of the re-delivery to KV Supplies.
9.5 The replacement of faulty goods
The faulty Goods returned to KV Supplies will then belong to KV Supplies and any replacement Goods will belong to the Purchaser. Any replacement Goods will be subject to the same terms specified in Clause 9.1 and/or 9.3 following delivery.
9.6 The loss of goods
If goods are lost before the title has passed to the Purchaser, KV Supplies will only be responsible if the Purchaser notifies KV Supplies in writing within 7 days of the invoice date, of such loss or non-delivery.
9.7 Breach of services
If the Services performed are in breach of Clause 9.2, KV Supplies will at its option make good the performance, re-perform the Service or refund the Purchaser the relevant Price, subject to availability and the performance being proved to be deficient to the reasonable satisfaction of KV Supplies. These obligations will not apply where: the part of the Service concerned was based on information supplied by or varied from the normal Service at the specific request of the Purchaser, or
* the Purchaser failed to notify KV Supplies of the fault or suspected fault within 7 days of the supply (where the
fault should have been apparent on supply) or within 14 days of the fault coming to the attention of the
Purchaser where the fault was not apparent on supply.
10. Consumer Protection (distance selling) Regulations 2000 ("the regluations" )and returns by non-consumers
10.1 Distance selling
Where a contract with a consumer is concluded on a distance selling basis the Regulations (as amended from time to time) will apply and the Purchasing consumer will have a general right to cancel. In the case of goods this will expire 7 days after delivery and in the case of services this will expire 7 days after booking (except for late bookings when it will expire on the date the services are commenced). Subject to the Regulations and to the foregoing, if a request is made to amend services or to cancel services, the following fees may be applied:
10.1.1 Transfer request
More than 4 weeks before commencement date: First transfer at no charge, subsequent transfer 25% of amount charged
* Between 2-4 weeks before commencement date: 25% of amount charged
* Less than 2 weeks before commencement date: 50% of amount charged
More than 4 weeks before commencement date: First transfer at no charge, subsequent transfer 25% of amount charged
* Between 2-4 weeks before commencement date: 25% of amount charged
* Less than 2 weeks before commencement date: 50% of amount charged
10.1.2 Cancellations
* More than 4 weeks before commencement date: Full refund* Between 2-4 weeks before commencement date: 50% of amount charged
* Less than 2 weeks before commencement date: 100% of amount charged
In all cases, notice of cancellation must be confirmed in writing addressed to the Company Secretary, KV Services Limited, 76d Summer Lane, Barnsley, South Yorkshire, S70 2NN. In the case of goods, and before any refund can be provided, it is the Purchaser’s responsibility to ensure that the goods remain in satisfactory condition and to return them at their own expense.
10.2 Exchange and refund policies for non-consumer purchasers
Where a Purchaser as a non-consumer, is not fully satisfied with their purchase, they may (at KV Supplies’s sole discretion) be provided with a refund or an exchange for another product, provided the original item is satisfactorily returned together with the original receipt within 60 days from delivery. In the case of their fitness for purpose, this discretion does not apply to items produced to the Purchaser’s particular specification etc.
11. Liability
11.1 Liability policies
Nothing in this contract excludes or limits or attempts to exclude or limit the liability of either party for death or personal injury caused as a result of its negligence, or for fraudulent misrepresentation, or in respect of the implied warranties contained in the Sale of Goods Act 1979 or the Supply of Goods and Services Act 1982.
11.2
Subject to Clause 11.1, KV Supplies will be under no liability to the Purchaser whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss or profits, loss of business, depletion of goodwill and like loss) howsoever caused.
11.3
Subject to Clauses 11.1 and 11.2 KV Supplies’s aggregate liability under this Agreement (whether in contract, tort (including negligence) breach of statutory duty, restitution or otherwise) for any damage or 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 like loss) howsoever caused will be limited to the amount paid for the Goods and/or Services concerned.
12. Notices
12.1 Notice procedure
Any demand notice or communication may be given by hand or sent by first class prepaid post of facsimile and shall be deemed to have been duly served if delivered by hand and when left at the address of the other, if given or made by prepaid first class post, 48 hours after being posted (excluding Saturday, Sunday and public holidays); if given or made by facsimile, at the time of transmission, provided that a confirming copy is sent by first class prepaid post to the other party within 24 hours after transmission.
13. Freedom of Information
13.1 Freedom of Information procedure
Where the Purchaser is a Public Authority as defined in the Freedom of Information Act 2000 (“the FOIA”) it agrees to notify KV Supplies immediately that it receives any FOIA request for information regarding KV Supplies or its business, and it agrees to consult with KV Supplies regarding the application of any exemptions under the FOIA in relation to such request. KV Supplies agrees to co-operate with the Purchaser in relation to the FOIA.
14. Disputes
14.1 Dispute procedure
In the event of a dispute concerning the goods or services the parties shall use their reasonable endeavours to resolve it as soon as practicable. If they fail to do so within 14 days, the parties shall try to agree on and implement a method of dispute resolution. If they fail to agree such method within 14 days, the parties confirm that the dispute will then become subject to the exclusive jurisdiction of the English Courts.
15. Consequences of termination
15.1 Termination of an Agreement
The termination of this Agreement howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued prior to termination. The clauses which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
16. Contracts (Rights of Third Parties) Act 1999
16.1
The parties to the contract incorporating these conditions do not intend that any of its terms would be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
17. Assignment
17.1 Rights and obligations
Neither party shall be entitled to assign or transfer any of its rights or obligations without prior written agreement of the other (which shall not be unreasonably withheld or delayed).
18. Waivers
18.1 Waiver procedure
No failure or delay by a party to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
19. Invalidity/severability
19.1 Conditions for Agreement severability
If any clause or part of this Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from this Agreement and will be ineffective without, as far as is possible, modifying any other clause or part of this Agreement and this will not affect any other provisions of this Agreement which will remain in full force and effect.
20. Variation
20.1 Conditions for variation
This Agreement may only be varied or amended in writing and signed by the parties specifically referring to this clause and stating that this Agreement is varied in the manner specified.
21. Entire agreement
21.1 Agreement content
The Agreement into which these terms and conditions are incorporated contain all the terms which the parties have agreed in relation to the subject matter of this Agreement. Nothing in this Clause shall be taken to exclude liability for fraudulent misrepresentation.
22. No partnership
22.1 Partnerhship
Nothing in this Agreement or any arrangement contemplated by it shall constitute either party a partner of the other nor shall the execution, completion and implementation of this Agreement confer on any party any power to bind or impose any obligation to any third parties on the other party or to pledge the credit of the other party.
23. Compliance with laws and regulation
23.1 Laws and regulation
Each party shall observe and abide by and shall require its sub-contractors to observe and abide by all laws, regulations and bye laws as may apply in relation to the matters contemplated by this Agreement.
24. Governing law and jurisdiction
24.1 Governing law and jurisdiction procedure
The formation, existence, construction, performance, validity and all aspects whatsoever of the Agreement or of any term of the Agreement will be governed by the Law of England and Wales and subject to Clause 14, the courts of England and Wales shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Agreement.
