Wells Terms & Conditions
TERMS AND CONDITIONS OF SALE OF GOODS
1.1 In these Conditions the following words have the following meanings:
Wells means Wells Fireworks (Dartford) Ltd (Registered in England and Wales under number 01791727). Also referred to as Wells, Wells Fireworks and Wells Pyrotechnics. In most cases in the following document Wells has been used to clarify the term supplier. It includes all Employees and Authorised Representatives of Wells Fireworks.
Goods means the goods which Wells is to supply in accordance with these Conditions and includes, but is not limited to, all special effects, pyrotechnics, fireworks, igniters and explosives.
Carrier means a freight, commercial or private individual(s), firm or organisation that has been chosen to transport the Goods or products either for the whole journey or as a part of a wider distribution chain.
Order means a request for Goods of specific type(s) and number(s) to be supplied by a specific time or times.
Customer means the person(s), firm or company or organisation who accepts a quotation from Wells for the sale of the Goods or whose Order for the Goods is accepted by Wells.
End User means the person or persons actually using/firing the product. This may not be the Wells direct Customer if the Goods have been resold, lent or given away.
Conditions means the standard terms and Conditions of sale set out in this document but not excluding any further special terms and Conditions agreed in writing between the Customer and an Authorised Representative of Wells.
Contract means the agreement for the sale and purchase of the Goods between Wells and the Customer.
Authorised Representative means either of the Managing Directors or the Factory Manager of Wells Fireworks (Dartford) Ltd.
Employees means anyone permanently employed either on a full or part-time basis by the Customer or Wells as applicable.
Agents means anyone contracted by, or working ad-hoc or temporarily for, but in any case acting on behalf of, either the Customer or Wells as applicable.
2 Application of Terms
2.1 Subject to any variation under clause 2.2 any Contract of sale will be on these Conditions to the exclusion of all other terms and Conditions (including any terms or Conditions which the Customer purports to apply under any purchase Order, confirmation of Order, specification or other document).
2.2 No variation of these Conditions shall be effective unless expressly agreed in writing by an Authorised Representative of Wells.
3 Use of Goods
3.1 Any advice or recommendation given verbally or in writing by Wells’ Employees or Agents to the Customer’s Employees or Agents is given freely and with no recommendation and if followed or acted upon is done so entirely at the Customer's own risk and accordingly Wells shall not be liable for any such advice. This advice may include, but not be limited to, storage, disposal, application or use of the Goods.
3.2 Products supplied by Wells may be dangerous and can cause injury or fatality if misused, abused, dismantled or modified.
3.3 Written instructions and Safety Data sheets are available by request and must be read and understood if the End User is unfamiliar with the Goods being used. It is the Customer’s responsibility to ensure that the Goods are used correctly. If the Customer or End User has any enquiries in relation to the written instructions provided by Wells, then Wells Fireworks (Dartford) Ltd should be contacted for clarification or advice prior to use of the Goods.
4 Orders and specifications
4.1 All Orders placed by the Customer must be confirmed to Wells in a written form (email, fax or letter) as set down in clause 15. Only once Wells has acknowledged in writing can they be deemed to be accepted by Wells. This Order should specify the type and quantity of Goods required, the delivery address and an expected delivery date along with any special instructions.
4.2 Once an Order has been accepted by Wells it may only be cancelled by the Customer with the agreement in writing of Wells and on terms that the Customer shall indemnify Wells in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Wells as a result of cancellation.
4.3 It is the Customer’s’ responsibility to ensure that the terms of the Order and any applicable specification are complete and accurate.
4.4 If when using the Customer’s specification to manufacture Goods or apply any process to ready made Goods a claim for infringement of any statutory or EC requirements, patent, copyright, design, trade mark or other industrial or intellectual property rights of another person occurs then the Customer shall fully indemnify Wells against any loss, damages, costs or expenses awarded against or incurred by Wells in connection with or paid or agreed to be paid by Wells in settlement of the infringement.
4.5 Wells reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or, where the Goods are to be supplied to Wells’ specification, any changes which do not materially affect their quality or performance.
5 Price of the goods
5.1 Unless otherwise agreed by Wells in writing, as set down in clause 15, the price for the Goods shall be the price set out in Wells' current price list current at the date the Order was confirmed. (The current price list is available at www.wellsfireworks.co.uk or via request to Wells).
5.2 All prices quoted by Wells are in sterling unless otherwise agreed in writing by Wells as set down in clause 15.
5.3 The basic price for the Goods shall be exclusive of any value added tax (VAT) at the current prevailing rate. It will also exclude all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Customer will pay in addition (where relevant) when it is due to pay for the Goods.
5.4 Wells reserves the right to adjust the price of the Goods before they have been delivered to the Customer in the case of:
(a) an error or omission in the quotation or published lists; or
(b) an increase in the cost to Wells of providing the Goods due to any factor beyond their control.
5.5 Wells reserves the right to make an additional charge for small Orders to compensate for the proportionally larger costs of packing materials and time expended.
5.6 Wells reserves the right to charge an additional percentage on the price of any Goods which are sold in less than whole box quantities to compensate for the additional time spend in splitting and re-boxing such Goods.
6 Terms of payment
6.1 For all Account Customer’s, full payment of the price for the Goods is due within 30 days of the Invoice date. Failure to pay within this period may result in Account facilities being withdrawn either for a probationary period or permanently.
6.2 For all Non-Account Customer’s full payment must have been received before the Goods can be despatched. A pro-forma will be prepared to enable this. Note clause 5.4 pertains to this.
6.3 All Payments are to be made in Sterling. UK payments shall be made by either BACS, Cheque, cash, credit or debit cards. All payments from outside the UK shall be made by BACS or Debit card only.
6.4 Wells reserves the right to demand, from any Customer, all or any part of any payment in advance for any Order of the Goods as Wells, in its sole discretion, shall decide.
6.5 Time for payment is of the essence.
6.6 If the Customer fails to pay Wells any sum pursuant to the Contract, the Customer shall be liable to pay interest at the annual rate of 5% above the current national base lending rate taken at the Invoice due date until full payment is made, whether before or after any judgment.
6.7 No payment shall be deemed to have been received until Wells has received cleared funds.
6.8 Wells shall retain title in the Goods until all sums due in respect thereof have been received in full. However all risk shall pass to the Customer in accordance with clause 9.1. If any part of the payment due is outstanding Wells shall be entitled to retain or regain physical possession of any of the Goods.
6.9 Should the Customer fail to make the full payment on the due date then, without prejudice to any other right or remedy available to Wells, Wells shall be entitled to:
6.9.1 Cancel the Contract or suspend any further deliveries to the Customer;
6.9.2 Allocate any payment made by the Customer to such of the Goods supplied under this or any other Contract between the Customer and Wells as Wells may think fit (notwithstanding any purported appropriation by the Customer).
6.9.3 (if an Account Customer), permanently or temporarily reduce his standing to that of Non-Account status and require advance payment on all future Goods in accordance with 6.2.
6.10 Unless the Customer has a valid court Order requiring an amount equal to such deduction to be paid by Wells to the Customer then the Customer shall agree to pay all sums due under the Contract without deduction, set off, counterclaim discount, abatement or otherwise.
6.11 All payments payable to Wells under the Contract shall be due immediately upon termination of the Contract despite any other provision.
7.1 Unless otherwise agreed in writing by Wells or by unavoidable circumstance all Goods shall be delivered to the address as arranged or specified and by the date given in the Order as set out in clause 4.1. If the Goods are to be delivered in advance of the Delivery Date then reasonable notice will be given to the Customer. The Customer shall make all arrangements to take delivery of the Goods whenever they are tendered for delivery.
7.2 Unless otherwise arranged Wells shall select a Carrier for delivery of the Goods to the Customer. If the Customer selects a Carrier for delivery of the Goods then they must notify Wells at least 10 working days prior to the Delivery Date of its preferred Carrier for the delivery of the Goods. For avoidance of doubt, delivery to the Carrier is to be treated as delivery to the Customer and all costs of delivery are for the Customer’s account.
7.3 The Customer shall obtain all necessary import licences, clearances and other consents necessary for the purchase of the Goods. In practice Wells will normally use a Carrier that will arrange all the necessary paperwork and Wells shall provide on request all reasonably necessary documentation required by the Customer or Carrier for this purpose. Once the Goods have been dispatched by Wells the Carrier is deemed to be working for the Customer and as such the Customer accepts all responsibility for the Carriers actions.
7.4 Whilst Wells will make all reasonable efforts to deliver the Goods in time, all Delivery Dates are approximate only and Wells shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be made of the essence by notice.
7.5 Where the Goods are arranged to be delivered in instalments, each delivery shall constitute a separate Contract and failure by Wells to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
7.6 If the Customer fails to take delivery of the Goods or fails to give Wells or the Carrier adequate delivery instructions at the time stated for delivery or is not present to receive the Goods when delivery is attempted (otherwise than by reason of Wells’ fault) then, without prejudice to any other right or remedy available to Wells:
7.6.1 the Goods will be deemed to have been delivered;
7.6.2 the Contract between Wells and the Customer shall be deemed to have been fulfilled.
7.6.3 all risk in the Goods will pass to the Customer (including any loss or damage caused whilst in Wells’ care);
7.6.4 Wells may store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
7.6.5 Wells may sell or otherwise dispose of the Goods.
7.7 Subject to the other provisions of these Conditions Wells will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by Wells’ negligence), nor will any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 65 working days.
8 Non or part delivery
8.1 Unless the Customer can provide conclusive evidence proving the contrary then the quantity of any consignment of Goods as recorded by Wells upon despatch from Wells' place of business shall be conclusive evidence of the quantity received by the Customer on delivery.
8.2 No liability will be due to Wells for any non or part delivery of Goods (even if caused by Wells' negligence) unless written notice is given to Wells within 2 working days of the date when the Goods would in the ordinary course of events have been received.
8.3 Where non or part delivery of the Goods has occurred then Wells’ liability shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate less reasonable expenses against any invoice raised for such Goods.
8.4 Any agreement to replace part or non-delivered Goods is deemed to form a new Contract between Wells and the Customer.
9 Risk and property
9.1 On dispatch of Goods as set out in clauses 7.1 and 7.2 from Wells to be delivered at the Customers premises or other premises by request of the Customer all Risk of damage to or loss of the Goods shall pass to the Customer.
9.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, actual ownership of the Goods shall not pass to the Customer until Wells has received full, cleared payment of the Goods value and all other Goods/services as agreed to be sold by Wells to the Customer for which payment is then due.
9.3 Until such time as ownership of the Goods does pass to the Customer, the Customer shall hold the Goods as Wells’ fiduciary agent and Bailee. Goods kept thus shall be kept separate from others of the Customer and third parties and properly stored, protected, insured and identified as Wells’ property. However the Customer shall be entitled to resell or use the Goods in the ordinary course of their business.
9.4 Provided the Goods are still in existence, have not been resold and until such time as the property in the Goods passes to the Customer, Wells shall be entitled as to require the Customer to return the Goods to Wells.
If the Customer fails to do so forthwith, Wells (or its Agents or Employees) may enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
9.5 The Customer's right to possession of the Goods shall terminate immediately if:
9.5.1 the Customer has a bankruptcy Order made against them or makes an arrangement or composition with their creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Customer or for the granting of an administration Order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
9.5.2 the Customer suffers or allows any execution, whether legal or equitable, to be levied on their property or obtained against them or it, or fails to observe/perform any of their obligations under the Contract or any other Contract between Wells and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
9.6 Wells shall be entitled to recover payment for the Goods notwithstanding that ownership of the Goods has not passed from Wells to the Customer.
10 Product Warranty
10.1 Wells warrants that (subject to the place of storage being in a fit, suitable condition for pyrotechnic storage or subject to any other provisions of these Conditions or where otherwise a warranty supplied in relation to any of the Goods specifies a different expiry period) upon delivery, and for a period of 12 months from the date of delivery, the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1994.
10.2 Wells shall not be liable for a breach of the warranty in condition 10.1 unless:
10.2.1 the Customer gives written notice, as per clause 15, detailing the defect(s) to Wells and (if the defect is as a result of damage in transit) to the Carrier, within 7 days of the time when the Customer discovers or ought to have discovered the defect; and
10.2.2 Wells is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer, (if asked to do so by Wells), returns such Goods to Wells Factory, using a courier of Wells choice and at Wells’ cost for an examination to take place there.
10.3 Wells shall not be liable for a breach of the warranty in condition 10.1 if:
10.3.1 the Customer makes any further use of such Goods after giving such notice; or
10.3.2 the Customer sells on, gives or lends the Goods to a third party; or
10.3.2 the defect arises because the Customer failed to follow Wells’ oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
10.3.3 the Customer alters or repairs such Goods without the written consent of Wells.
10.4 Wells shall at its discretion either replace such Goods or refund the price of such Goods at the pro rata Contract rate provided that, if Wells requests, the Customer shall, at Wells' expense, return the Goods to Wells.
10.5 If the Goods are found to not be faulty then Wells will charge the Customer for all costs incurred. These costs may include, but not exclusively be, servicing, carriage, packaging, research & testing time and materials.
10.6 If Wells complies with condition 10.4 it shall have no further liability for a breach of the warranty in condition 10.1 in respect of such Goods.
11 Limitation of Liability
11.1 Subject to condition 10, the following provisions set out the entire financial liability of Wells (including any liability for the acts or omissions of its Employees, Authorised Representatives, Agents and Sub-Contractors) to the Customer in respect of:
11.1.1 any breach of these Conditions; and
11.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 Save for the Conditions implied by section 12 of the Sale of Goods Act 1979; all warranties, Conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Conditions excludes or limits the liability of Wells for death or personal injury caused by Wells’ negligence or fraudulent misrepresentation.
11.4 Subject to Conditions 11.2 and 11.3:
11.4.1 Wells’ total liability in Contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract price; and
11.4.2 Wells shall not be liable to the Customer or any other party for any direct, indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
12.1 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Wells.
12.2 Wells may assign the Contract or any part of it to any person, firm or company.
13 Force Majeure
Wells reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods Order by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Wells. These circumstances include, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, labour shortages or labour disputes, or legal restraints or actions, or a Carriers ability to carry the Goods or to deliver the Goods or of obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to Wells to terminate the Contract.
14.1 Each right or remedy of Wells under the Contract is without prejudice to any other right or remedy of Wells whether under the Contract or not.
4.2 If any provision or part of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable. However, under Wells discretion, the remaining provisions of the Contract and the remainder of such provision may be held to continue in full force and effect or the Contract may be cancelled wholly with all liabilities falling to the Customer.
14.3 Failure or delay by Wells in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
14.4 Any waiver by Wells of any breach of, or any default under, any provision of the Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
14.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
15.1 All communications between the parties about this Contract must be in writing. They may either be delivered by hand, sent by pre-paid registered first class post, facsimile transmission or email (with a read receipt):
15.1.1 (in case of communications to Wells) to its registered office or such changed address as shall be notified to the Customer by Wells; or
15.1.2 (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to the last notified address of the Customer set out in any document which forms part of this Contract or such other address as shall be notified to Wells by the Customer.
15.2 Communications shall be deemed to have been received:
15.2.1 if sent by registered pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
15.2.2 if delivered by hand to a Wells Representative, Staff Member or other Authorised Representative on the day of delivery;
15.2.3 if sent by facsimile transmission on a working day prior to 3.00 pm, at the time of transmission and otherwise on the next working day and that a notification of receipt is made by Wells.
15.2.4 if sent by email on a working day prior to 3.00 pm, at the time of transmission and otherwise on the next working day and that a notification of receipt is made by Wells.
15.3 All communications addressed to Wells shall be marked for the attention of The Manager, Wells Fireworks.