1. Interpretation

 

1.1 Business Day is a day other than a Saturday, Sunday or public holiday in Scotland, when banks are open for business. 1.2 Customer is the person or company who accepts a quotation for the sale of the goods, or whose order for the goods is accepted by Customworks
1.3 Customworks is Customworks Ltd, registered in Scotland under number SC173894 and having its registered office at 1/3 Bo'mains Industrial Estate, Linlithgow Road, Bo'ness, West Lothian, EH51 0QG
1.4 Contract means the Contract for the purchase and sale of the goods
1.5 Force Majeure Event is an event, circumstance or cause beyond a party's reasonable control
1.6 Website means Customworks website at www. customworks.co.uk
1.7 Writing includes facsimile and e-mail

 

2. Basis of the Sale

 

2.1 Customworks shall sell and the Customer shall purchase the goods in accordance with any Customworks written quotation which is accepted by the Customer or by any written order of the Customer which is accepted by Customworks, subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between authorised representatives of the Customer and Customworks.

 

3. Purchase Orders

 

3.1 No order submitted by the Customer shall be deemed to be accepted by Customworks unless and until confirmed in Writing by an authorised representative of Customworks.
3.2 No order which has been accepted by Customworks may be cancelled by the Customer except with the agreement in Writing of Customworks and on terms that the Customer shall indemnify Customwork in full against all loss (including loss of profit), costs (including the cost of all labour and materials ordered and/or used), damages, charges and expenses incurred by Customworks as a result of cancellation.

 

4. Terms of Payment

 

4.1 Advance payment will be required for the first order. Thereafter, subject to the approval of a credit account, all goods and services shall be paid by the end of the month following month of invoice (nett monthly).
4.2 If the Customer fails to make payment on the relevant due date, Customworks shall be entitled to suspend any further deliveries to the Customer, withdraw the credit facility previously agreed and charge the interest on any amount unpaid at the rate of 5% per annum above the Bank of Scotland base rate until payment is made in full. The creditworthiness of the Customer shall be monitored and reviewed on a regular basis which may also result in withdrawing credit facility.
4.3 Customworks may, by giving the Customer written notice, treat the unpaid invoices as being immediately due and payable and/or suspend delivery of any goods already ordered by the Customer:
4.3.1 if the Customer fails to pay any amount when it is due; or
4.3.2 if the Customer has a bankruptcy order made against him or enters into liquidation (whether voluntary or compulsory), or has a receiver and/or manager, administrator or administrative receiver appointed, or a resolution is passed or a petition presented to any court for the winding up of the Customer, or any other proceedings are commenced relating to the insolvency or possible insolvency of the Customer.
4.4 The Customer shall not be entitled to withhold payment for any reason or make deductions, whether by way of set-off counterclaim, discount or otherwise unless previously agreed with Customworks.
4.5 The Customer acknowledges that Customworks may make a search with a credit reference agency and keep a record of that search and may share that information with other businesses. Customworks may also make enquires about principal directors of the Customer with a credit reference agency.

 

5. Retention of Title

 

5.1 Title to the goods shall not pass to the Customer until all sums due by the Customer to Customworks (including any applicable interest and charges) have been paid in full.
5.2 In the event of non-payment, Customworks shall be entitled to require the Customer to deliver up the goods to Customworks and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or third party where the goods are stored and repossess the goods. The Customer shall be obliged to assist and allow Customworks to repossess the goods.

 

6. Delivery / Loss or Damage

 

6.1 Any dates quoted for delivery of the goods are approximate only and are not guaranteed. Customworks shall not be liable for any delay in delivery of the goods.
6.2 Risk of damage to or loss of the goods shall pass to the Customer as soon as the Goods, or any part thereof, have been delivered to the premises specified by the Customer.
6.3 The quantity of any consignment of goods as recorded by Customworks upon dispatch from Customworks warehouse shall be conclusive evidence of the quantity received by the Customer unless the Customer can provide evidence proving the contrary. Any complaint of short delivery or of goods damaged in transit must be notified within 48 hours of receipt of goods. Any complaints of failure to deliver goods invoiced or complaints relating to prices must be notified within 14 days of the date of the invoice.

 

7. Goods

 

7.1 Any specifications in respect of the goods such as: (i) applicable sizes for items; and (ii) minimum orders for items, will be notified to the Customer. 
7.2 Any descriptions, illustrations or images of the goods contained in Customworks catalogues or Website are produced for the sole purpose of giving an approximate idea of the goods and the goods may vary from those descriptions illustrations or images.
7.3 Customworks shall take all reasonable care to ensure that the details, description and price of the goods on the Website are up-to-date, however  Customworks makes no warranty as to the accuracy of such details, description and price of the goods.

 

8.Quality

 

8.1 Customworks warrants that on delivery the goods shall:

a) conform in all material respects with their description and

b) Customworks is given a reasonable opportunity of examining such goods; and

c) the Customer (if asked to do so by Customworks) returns such goods to Customworks place of business at the Customer's cost, Customworks shall, at its option, replace the defective goods, or refund the price of the defective goods in full.

8.3 Customworks shall not be liable for the goods failure to comply with the warranty set out in clause 8.1 if:

a: the Customer alters or repairs such goods without the written consent of Customworks; or

b: the defect arises as a result of wilful damage, negligence, or abnormal storage conditions.

8.4 Except as provided in this clause 8, Customworks shall have no liability to the Customer in respect of the goods failure to comply with the warranty set out in clause 8.1.

8.5 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.

8.6 These Conditions shall apply to any replacement goods supplied by  Customworks.

 

9. Returns

 

9.1 Returned goods will only be accepted when authorised by Customworks prior to the goods being returned.
9.2 Authorised returned stock must be in saleable condition, in the original packaging and have no price labels attached.
9.3 Unauthorised returns will not be accepted.
9.4 Except where incorrect/faulty goods have been supplied, Customworks will not be liable for return shipping costs.

 

10. Limitation of Liability

 

10.1 The restrictions on liability in this clause 10 apply to every liability arising under or in connection with the Contract including liability in contract, delict (including negligence), misrepresentation, restitution or otherwise.

10.2 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; or

d) defective products under the Consumer Protection Act 1987.

 

10.3 Subject to clause 10.2, Customworks' total liability to the Customer shall not exceed the total price of the goods.

10.4 Subject to clause 10.2, the following types of loss are wholly excluded: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of use or corruption of software, data or information; (vi) loss of or damage to goodwill; and (vii) indirect or consequential loss.

10.5 This clause 10 shall survive termination of the Contract.

 

11. Termination 

 

11.1 Without limiting its other rights or remedies, Customworks may terminate this Contract with immediate effect by giving written notice to the Customer if:

a) the Customer commits a material breach of any term of the Contract;

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

d) the Customer 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.

 

11.2 Without limiting its other rights or remedies, Customworks may suspend provision of the goods under the Contract or any other contract between the Customer and Customworks if the Customer becomes subject to any of the events listed in clause 11.1(b) to clause 11.1(d), or Customworks reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

11.3 Without limiting its other rights or remedies, Customworks may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

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

11.5 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.

11.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

 

12. Force majeure 

 

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 4 weeks, the party not affected may terminate the Contract by giving 10 days' written notice to the affected party.

 

13. Privacy

 

13.1 We do not record any sensitive financial information
13.2 No financial transactions are completed on the trade website. Existing trade customers will be subject to their usual terms. New customers will be subject to proforma terms.
13.3 We do not sell customer information/lists. All of you information is treated in the strictest of confidence and is securely stored on our systems.

 

14. General 

 

14.1 Assignation and other dealings 

a) Customworks may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, 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 Customworks.

 

14.2 Variation. Customworks may vary the Contract, and in particular these Conditions at any time.  The Customer shall be responsible for reviewing any updates to these Conditions. 

 

14.3 Waiver

a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

 

14.4 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

14.5 Notices

a) Any notice given to a party under or in connection with this agreement shall be in writing and shall be:

i) delivered by hand or by pre-paid first-class post or other next business day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

ii) sent by email to the addresses commonly used by the representatives of the parties.

b) Any notice shall be deemed to have been received:

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

ii) if sent by pre-paid first-class post or other next business day delivery service, at 9.00 am on the second Business Day after posting; or

iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.

 

c) 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.

 

14.6 Third party rights. No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

 

14.7 Governing Law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with Scots law.

 

14.8 Jurisdiction. Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.