CASSELLIE LIMITED TERMS AND CONDITIONS OF SALE
1. Definitions. In these Conditions, the following definitions apply:
Account Application Form: the Cassellie account application form signed and returned to Cassellie by the Customer.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Cassellie: Cassellie Limited (registered in England and Wales with company number 06932739), whose registered office is at Unit 1 – 6 Howden Way, Morley, Leeds, LS27 0TF.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.6.
Contract: the contract between Cassellie and the Customer for the sale and purchase of the Products which is made up of these Conditions, the Account Application Form and any Orders made by the Customer.
Customer: the person or firm who purchases the Products from Cassellie as identified in the Account Application Form.
Force Majeure Event: has the meaning given in clause 10.
Order: an order for Products issued by the Customer in writing or verbally and accepted by Cassellie in accordance with clause 2.3.
Products: the Products (or any part of them) to be supplied by Cassellie to the Customer as set out in the Order.
In these Conditions, the following rules apply:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its personal representatives, successors or permitted assigns.
Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written includes emails.
2. BASIS OF CONTRACT
1. These Conditions apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. For the avoidance of doubt, by signing and retuning to Cassellie the Account Application Form, the Customer acknowledges and agrees that these Conditions apply to each Contract entered into with Cassellie.
2. The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable specification are complete and accurate.
3. The Order shall only be deemed to be accepted on the earliest of:
a. Cassellie issuing a written acceptance of the Order; and
b. Cassellie delivering the Products to the Customer,
at which point the Contract shall come into existence.
4. Any samples, drawings, descriptive matter, or advertising produced by Cassellie and any descriptions or illustrations contained in Cassellie’s catalogues or brochures or on Cassellie’s website are produced for the sole purpose of giving an approximate idea of the Products described in them. Such descriptions shall not form part of the Contract or have any contractual force.
5. A quotation for the Products given by Cassellie shall not constitute an offer. A quotation shall only be valid for a period of 20 (twenty) Business Days from its date of issue.
6. Products may vary slightly from their pictures. Product images displayed on Cassellie’s website are for illustrative purposes only. Although Cassellie has made every effort to display the colours accurately, Cassellie cannot guarantee that a device’s display of the colours accurately reflects the colour of the Products. The Product supplied may vary slightly from such images.
3.1. The Products shall be identified in the Customer’s Order that is accepted by Cassellie in accordance with clause 2.3.
3.2. In the event that the Products arrive damaged, the Customer shall report such damage to Cassellie within 48 (forty-eight) hours of receipt of the Products. Proof of purchase and photographic evidence must be provided by the Customer.
3.3. If there is a discrepancy with an Order such as missing items or Products wrongly received, the Customer shall ensure that such discrepancy is reported to Cassellie within 72 (seventy-two) hours of receipt of the Products.
4.1. Cassellie shall ensure that:
a. each delivery of the Products is accompanied by a delivery note which states the date of the Order, the type and quantity of the Products (including, where applicable, a product code) and, if the Order is being delivered by instalments, the outstanding balance of the Products remaining to be delivered; and
b. where Cassellie requires the Customer to return any packaging materials to Cassellie, this is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Cassellie shall reasonably request. Return of packaging materials shall be at Cassellie’s expense.
4.2. Unless otherwise agreed between the parties in writing, Cassellie shall deliver the Products to the location set out in the Account Application Form.
4.3. Delivery of the Products shall be deemed to be completed on actual delivery of the Products to the location described in clause 4.2, upon the earlier of either: (a) the actual date of delivery of the Products to that location by Cassellie; or (b) where the Customer has agreed to collect the Products from Cassellie’s premises, 3 (three) Business Days of Cassellie notifying the Customer that the Products are ready for collection.
4.4. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Cassellie shall not be liable for any delay in delivery of the Products or failure to deliver the Products that is caused by a Force Majeure Event or the Customer’s failure to provide Cassellie with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.5. If the Customer fails to:
a. take delivery of the Products when Cassellie attempts to deliver them as described in clause 4.3; or
b. where the Customer has agreed to collect the Products from Cassellie’s premises, to collect the Products within 3 (three) Business Days of Cassellie notifying the Customer that the Products are ready,
then except where such failure or delay is caused by a Force Majeure Event or Cassellie’s failure to comply with its obligations under the Contract, delivery of the Products shall be deemed to have been completed on either (as appropriate) the date of attempted delivery by Cassellie or the end of the third Business Day after Cassellie notifying the Customer that the Products are ready, and Cassellie shall store the Products until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance). In the event the Customer refuses a delivery, a carriage and restocking charge will be applicable.
4.6. If 10 (ten) Business Days after the deemed day of delivery described in clause 4.5 the Customer has not taken or accepted delivery of the Products, Cassellie may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Products or charge the Customer for any shortfall below the price of the Products.
4.7. Cassellie may deliver the Products by instalments, which shall be invoiced and paid for separately.
4.8. The Customer shall sign and return to Cassellie (by email) a proof of delivery form immediately following delivery of the Products. Any claim by the Customer that the quantity of Products delivered is not in accordance with the quantity of Products identified in the Order shall be notified to Cassellie along with any relevant details on the proof of delivery form. Cassellie shall promptly investigate any such claims and the evidence of Cassellie’s packing room CCTV cameras shall be conclusive as to the quantity of Products actually delivered.
4.9. Cassellie reserves the right to suspend the supply of a Product where:
a. technical problems have occurred, or minor technical changes are required; and/or
b. the Product requires updating to reflect changes in relevant laws and regulatory requirements.
5.1. Cassellie warrants that on delivery the Products shall be free from material defects in design, material and workmanship, and shall comply in all material respects with any agreed description of the Products.
5.2. Subject to clause 5.3, provided that:
a. the Customer gives notice in writing to Cassellie within 2 (two) Business Days of delivery that some or all of the Products do not comply with the warranty set out in clause 5.1;
b. Cassellie is given a reasonable opportunity of examining such Products; and
c. the Customer (if asked to do so by Cassellie) returns such Products to Cassellie’s place of business at the Customer’s cost,
Cassellie shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.
5.3. Cassellie shall not be liable for the Products’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
a. the Customer makes any further use of such Products after giving notice in accordance with clause 5.2;
b. the defect arises from the Customer’s failure to follow Cassellie’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Products or (in the absence of such instructions) good trade practice regarding the same;
c. the Customer alters or repairs such Products without the written consent of Cassellie; or
d. the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions.
5.4. Except as provided in this clause 5, Cassellie shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 5.1.
5.5. Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.6. These Conditions shall apply to any repaired or replacement Products supplied by Cassellie.
5.7. Whilst Cassellie is not obliged to accept returns of any Products otherwise than strictly upon the terms of this clause 5, Cassellie may (in its absolute discretion) on notice to the Customer accept returns of Products within a period of 2 (two) months from the date of purchase provided that the Customer pays to Cassellie a re-stocking charge of 25% (twenty five per cent) of the invoiced value of the Products returned.
5.8. If the packaging of any of the returned Products needs to be re-labelled, such re-labelling shall charged at 25% (twenty five per cent) of the invoiced value of the returned Products. If the Product has been delivered directly to the Customer’s end-customer, the Customer must cover the cost of returning the product including a 25% (twenty five per cent) restocking charge.
6. TITLE AND RISK
6.1. The risk in the Products shall pass to the Customer on completion of delivery (or deemed delivery) in accordance with clause 4.
6.2. Title to the Products shall not pass to the Customer until Cassellie has received payment in full (in cash or cleared funds) in respect of the Products.
6.3. Until title in the Products has passed to the Customer, the Customer shall:
a. hold the Products on a fiduciary basis as Cassellie’s bailee;
b. store the Products separately from all other Products held by the Customer so that they remain readily identifiable as Cassellie’s property;
c. not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
d. maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
e. notify Cassellie immediately if it becomes subject to any of the events listed in clause 8.2; and
f. give Cassellie such information relating to the Products as Cassellie may require from time to time,
but the Customer may resell or use the Products in the ordinary course of its business.
6.4. If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or Cassellie reasonably believes that any such event is about to happen and notifies the Customer accordingly, then provided that the Products have not been resold or irrevocably incorporated into another product, and without limiting any other right or remedy Cassellie may have, Cassellie may at any time require the Customer to deliver up the Products and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
7. PRICE AND PAYMENT
7.1. The price of the Products shall be stated:
a. in the Order accepted by Cassellie; or
b. if different, the price of the Products referred to in Cassellie’s written acceptance of the Order; or
c. if the Customer has accepted the prices set out in a price list issued by Cassellie the relevant prices set out in the latest price list signed off by the Customer.
7.2. Subject to clause 7.7, once the Account Application Form has been completed by the Customer and where the Customer has met Cassellie’s account opening criteria, Cassellie shall open an account for the Customer and grant credit to the Customer, such amount to be determined by Cassellie. For the avoidance of doubt, Cassellie may withdraw credit at any time if the Customer is in breach of these Conditions or if Cassellie’s funders withdraw or reduce Cassellie’s credit facility. Cassellie may refuse to grant credit in its absolute discretion.
7.3. Cassellie may, by giving notice to the Customer at any time before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
a. any factor beyond Cassellie’s control (including but not limited to foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
b. any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the specification of Products; or
c. any delay caused by any instructions of the Customer or failure of the Customer to give Cassellie adequate or accurate information or instructions.
7.4. Any further costs relating to any Order (such as costs/charges of packaging, insurance and transport of the Products) shall be notified to the Customer separately and paid by the Customer in addition to the cost of the Products.
7.5. The price of the Products is exclusive of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from Cassellie, pay to Cassellie such additional amounts in respect of VAT as are chargeable on the supply of the Products.
7.6. Cassellie may invoice the Customer for the Products on or at any time after the completion of delivery.
7.7. Subject to clause 7.8, unless otherwise agreed and stated in the Account Application Form, the Customer shall pay the invoice in full and in cleared funds by the end of the month following the month in which the invoice is dated. Time of payment is of the essence.
7.8. Where the Customer fails to meet Cassellie’s account opening criteria and Cassellie is unable to open an account for or grant credit to the Customer, the Customer shall pay for Products in full, in advance of delivery.
7.9. If the Customer fails to make any payment due to Cassellie under the Contract by the due date for payment, the Customer shall pay interest on the overdue amount at the rate of 5% (five per cent) per annum above HSBC Bank PLC’s base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay such interest together with the overdue amount.
7.10. The Customer shall pay all amounts due under the Contract in full without any deduction or withholding (except as required by law), and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Cassellie in order to justify withholding payment of any such amount in whole or in part. Cassellie may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Cassellie to the Customer.
8. CUSTOMER’S INSOLVENCY OR INCAPACITY
8.1. If the Customer becomes subject to any of the events listed in clause 8.2, or Cassellie reasonably believes that the Customer is about to become subject to any of these events and notifies the Customer accordingly, then, without limiting any other right or remedy available to Cassellie, Cassellie may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and Cassellie without incurring any liability to the Customer, and all outstanding sums in respect of Products delivered to the Customer shall become immediately due.
8.2. For the purposes of clause 8.1, the relevant events are:
a. the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
b. the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
c. (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
d. (being an individual) the Customer is the subject of a bankruptcy petition or order;
e. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
f. (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
g. (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
h. a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
i. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a) to clause 8.2(h) (inclusive);
j. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;
k. the Customer’s financial position deteriorates to such an extent that in Cassellie’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
l. (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.3. Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. LIMITATION OF LIABILITY
9.1. Nothing in these Conditions shall limit or exclude Cassellie’s liability for:
a. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
b. fraud or fraudulent misrepresentation; or
c. any matter in respect of which it would be unlawful for Cassellie to exclude or restrict liability.
9.2. Subject to clause 9.1:
a. Cassellie shall not 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
b. Cassellie’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 the price of the Order (paid or payable by the Customer) to which the claim relates.
10. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable.
The Customer shall keep Cassellie indemnified from and against all and any costs, claims, damages and expenses whatsoever arising out of or as a result of any breach or non-observance or non-performance of the Customer’s obligations under the Contract or incurred by Cassellie in the course of taking any proceedings or remedial action in relation to any matter relating to the Contract.
12.1. In the event of warranty claims, proof of purchase will be required. Please forward the full details of your claim to c/o Customer services Department, unit 1-6, Howden way, Howden Clough Road, Morley, Leeds, LS27 0TF or via email to email@example.com. Photographic evidence will be required, and in some cases a follow up inspection or return of Products. Cassellie reserves the right to repair the Product, replace the Product, replace a damaged part of the Product or issue a full refund on a case-by-case basis.
12.2. Guarantees are set out in the following Schedule:
12.3. This guarantee is in addition to your statutory and other legal rights and is subject to the following conditions:
a. the Product was purchased within the United Kingdom or Republic of Ireland;
b. if the Product is used in domestic applications only. For commercial or non-domestic applications such as leisure centres, sports clubs, hotels, premises operating as a business, the guarantee period is reduced to 1 (one) year on all products;
c. the guarantee applies solely to the original purchaser with proof of purchase;
d. Cassellie reserve the right to inspect the Product before removal or repair;
e. the guarantee is only valid if all installation, care and maintenance instructions have been adhered to;
f. the installation must allow ready access to all Products for the purpose of inspection, maintenance or replacement;
g. repair under this guarantee does not extend the original expiry date. The guarantee on any replacement parts or Product ends at the original expiry date;
h. any part found to be defective during the guarantee period will be replaced without charge, providing that the Product has been installed in accordance with the Product’s fitting instructions and used as the manufacturer intended; and
i. whilst Cassellie will support its retailers to investigate any warranty issues, responsibility for handling all guarantee/warranty issues sits with the retailer.
12.4. The guarantee does not cover damage or defects caused by:
a. incorrect installation;
b. repair using non-Cassellie parts;
c. accidental or willful misuse;
d. corrosion caused by the use of inappropriate cleaning products such as abrasive cleaning agents on chrome products where soapy water should be used only to clean;
e. system debris, including the buildup of limescale (which can be controlled through regular servicing and maintenance); or
f. compensation for loss of use of the Product or consequential loss of any kind.
13.1. Assignment and subcontracting.
a. Cassellie may at any time assign, transfer, charge, subcontract 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, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Cassellie.
a. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be either delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, or email.
b. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
c. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
a. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
b. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.4. Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5. Entire Agreement. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that, subject always to clause (b), it has not relied on any statement, promise or representation made or given by or on behalf of Cassellie which is not set out in the Contract.
13.6. Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.7. Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Cassellie.
13.8. Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.