Premier Barriers

Prosper Online Ltd Terms & Conditions of Sale

THANK YOU FOR YOUR BUSINESS.

OUR AIM IS TO OFFER YOU THE VERY BEST AT ALL TIMES IN TERMS OF PRODUCT

CHOICE, QUALITY, DELIVERY TIMES AND SERVICE LEVELS

OUR TERMS OF BUSINESS ARE COVERED IN DETAIL (POINTS 1.1 TO 13.6)

WITH SOME ADDITIONAL NOTES FOR GUIDANCE.

q   ALL PRODUCT PRICES QUOTED ARE IN POUNDS STERLING EXCLUSIVE OF VAT,

DELIVERY AND INSTALLATION.THESE ITEMS WILL BE QUOTED SEPARATELY.

q   ALL OUR PRODUCTS ARE PROVIDED IN APPROPRIATE PACKAGING

q   STANDARD DELIVERY FOR STANDARD ITEMS IS 3 WORKING DAYS. 24

HOUR AND SAME DAY DELIVERY CAN BE QUOTED AND ARRANGED ON

REQUEST

q   CUSTOMERS HAVE THE PAYMENT OPTIONS: VISA, MASTERCARD OR AMERICAN

EXPRESS; SWITCH, DELTA,CHEQUE OR PAYPAL

q   ALL ORDERS MUST BE RECEIVED IN WRITING (ONLINE SHOP, POST, OR E-MAIL)

q   WARNING:DO NOT DISASSEMBLE THE PREMIER BARRIERS RETRACTBLE WEBBING CASSETTE AS IT

CONTAINS A SPRING UNDER TENSION

q   SOME OF OUR PRODUCTS ARE NOT FOR OUTDOOR USE

q   OUR POLICY AND OUR SUPPLIERS POLICIES ARE ONE OF CONTINUING DEVELOPMENT. CONSEQUENTLY WE RESERVE THE RIGHT TO AMEND SPECIFICATION WITHOUT NOTICE.

Terms and conditions of business

1. DEFINITIONS AND EXPLANATION

1.1. In these conditions: "Buyer" means the person who accepts a quotation of the Premier Barriers for the sale of the Goods or whose order for the Goods is accepted by Premier Barriers;

"Conditions" means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and Premier Barriers;

"Contract" means the contract for the purchase and sale of the Goods;

"Goods" means the goods (including any instalment of the goods or any parts for them) which Premier Barriers is to supply in accordance with these Conditions;

"Late Payment Act" means the Late Payment of Commercial Debts (Interest) Act 1998 and all statutory instruments implementing this act;

“Premier Barriers” means Prosper Online Ltd, 20 Cucumber Lane, Brundall, Norwich, NR13 5QY. A company registered in England number 06304793, and who is supplying the Goods;

"Writing" includes physical, online shop, facsimile, email and electronic transmission

and comparable means of communication.

1.2. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

1.3. The headings in these Conditions are for convenience only and shall not affect their interpretation.

2. BASIS OF THE SALE

2.1. Premier Barriers shall sell and the Buyer shall purchase the Goods in accordance with any written purchase order of the Buyer, which is accepted by Premier Barriers, by the issue of an order acknowledgement (which includes the online shop notification of the despatch of the item). No contract will arise between the Buyer and Premier Barriers until such order acknowledgement is issued. All Goods are supplied subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions. It is a condition of this Contract and the supply of Goods that any Goods supplied by Premier Barriers must not in any circumstances be used where their failure could directly endanger life.

2.2. No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and of Premier Barriers.

2.3. Premier Barriers’ employees or agents are not authorised to make any representations concerning the Goods unless confirmed by a Director of Premier Barriers in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.

2.4. Any advice or recommendation given by Premier Barriers or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by a Director of the Premier Barriers is followed or acted upon entirely at the Buyers own risk, and accordingly Premier Barriers shall not be liable for any such advice or recommendation which is not so confirmed.

2.5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Premier Barriers shall be subject to correction without any liability on the part of Premier Barriers.

2.6. All industrial or intellectual property rights of any nature whatsoever in the Goods remain vested in Premier Barriers and/or its suppliers at all times.

3. ORDERS AND SPECIFICATIONS

3.1. The Buyer shall be responsible to Premier Barriers for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving Premier Barriers any necessary information relating to the Goods within a sufficient time to enable Premier Barriers to perform the Contract in accordance with its terms.

3.2. The quantity, quality and description of and any specification for the Goods shall be those set out in the Premier Barriers’ order acknowledgement.

3.3. If the Goods are to be manufactured or any process is to be applied to the Goods by Premier Barriers and/or its suppliers in accordance with a specification submitted by the Buyer, or utilising tooling, software or other goods or equipment supplied by the Buyer, the Buyer shall indemnify Premier Barriers and/or its suppliers against all loss, damages, costs and expenses awarded against or incurred by Premier Barriers and/or its suppliers in connection with or paid or agreed to be paid by Premier Barriers in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from Premier Barriers’ and/or its suppliers use of the Buyer’s specification or use of such tooling, software or other goods or equipment.

3.4. Premier Barriers and/or its suppliers reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to Premier Barriers’ and/or its suppliers specification, which do not materially affect their quality or performance.

3.5. Save as set out in Clause 4 below no order which has been accepted by Premier Barriers may be cancelled by the Buyer except with the agreement in Writing of Premier Barriers and on terms that the Buyer shall indemnify Premier Barriers 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 Premier Barriers as a result of cancellation.

4. PRICE OF THE GOODS

4.1. The price of the Goods shall be as per Premier Barriers’ order acknowledgment. All prices quoted (other than published on the online shop or other pulic place) are valid for 30 days after which time they may be altered by Premier Barriers on giving notice to the Buyer. If the Buyer is acting as a "Consumer", as defined by the Unfair Terms in Consumer Contracts Regulations 1999, the Buyer may within 7 days of receipt of such notice cancel the Contract. To be accepted as a Consumer the Buyer must advise Premier Barriers at the point of order that they are a Consumer (For the online shop the Buyer must chose Consumer and not Business when registering)

4.2. Premier Barriers reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to Premier Barriers which is due to any factor beyond the control of Premier Barriers (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Premier Barriers adequate information or instructions. If the Buyer is acting as a "Consumer", as defined by the Unfair Terms in Consumer Contracts Regulations 1999, the Buyer may within 7 days of receipt of such notice cancel the contract.

4.3. Except as otherwise stated under the terms of any quotation or in any price list of Premier Barriers, and unless otherwise agreed in Writing between the Buyer and the Premier Barriers, all prices are given by Premier Barriers on an ex-works basis, and where Premier Barriers agrees to deliver the Goods, the Buyer shall be liable to pay Premier Barriers’ charges for transport, packaging and insurance.

4.4. The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Premier Barriers. In the Online Shop the Buyer may chose to view the prices including VAT.

4.5. The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to Premier Barriers before the due payment date.

5. TERMS OF PAYMENT

5.1. Premier Barriers shall be entitled to invoice the Buyer for the price of the Goods before, on or at any time after, delivery of the Goods.

5.2. The Buyer shall pay the price of the Goods in advance, unless otherwise agreed in writing with Premier Barriers.

5.3. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Premier Barriers, Premier Barriers shall be entitled to:

5.3.1. cancel the contract or suspend any further deliveries to the Buyer;

5.3.2. appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and Premier Barriers) as Premier Barriers may think fit (notwithstanding any purported appropriation by the Buyer); and

5.3.3. charge the Buyer interest (both before and after any judgement) on the amount unpaid, pursuant to the Late Payment Act if applicable, or if not applicable at the rate of 4% per annum above Barclays Bank Plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

6. DELIVERY

6.1. Delivery of the Goods shall be made by the Buyer collecting the Goods at Premier Barriers’ or its suppliers premises at any time during the normal working day after Premier Barriers has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by Premier Barriers, by Premier Barriers delivering the Goods to that place.

6.2. Any dates quoted for delivery of the Goods are approximate only and Premier Barriers shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by Premier Barriers in Writing. The Goods may be delivered by Premier Barriers in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

6.3. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Premier Barriers to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

6.4. If Premier Barriers fails to deliver the Goods for any reason other than any cause beyond Premier Barriers’ reasonable control or the Buyer’s fault, and Premier Barriers is accordingly liable to the Buyer, Premier Barriers’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

6.5. If the Buyer fails to take delivery of the Goods or fails to give Premier Barriers adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Premier Barriers’s fault) then, without prejudice to any other right or remedy available to Premier Barriers, Premier Barriers may:

6.5.1. store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or 6.5.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

6.6. If delivery is delayed by industrial dispute or any circumstances beyond Premier Barriers’ control then the periods for delivery shall be extended by such a period as is reasonable in the circumstances. Should any delay continue for a period exceeding six months then, unless the parties agree to the contrary, the contract shall be deemed to be terminated without any claim for compensation against the Supplier.

7. RISK AND PROPERTY

7.1. Risk of damage to or loss of the Goods shall pass to the Buyer:

7.1.1. in the case of Goods to be delivered at Premier Barriers’ or its suppliers premises, at the time when Premier Barriers notifies the Buyer that the Goods are available for collection;

or

7.1.2. in the case of Goods to be delivered otherwise than at Premier Barriers’ or its suppliers premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when Premier Barriers has tendered delivery of the Goods.

7.2. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the title to the Goods shall not pass to the Buyer until Premier Barriers has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by Premier Barriers to the Buyer for which payment is then due.

7.3. Until such time as the title in the Goods passes to the Buyer, the Buyer shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Premier Barriers’ property.

7.4. Until such time as the title in the Goods passes to the Buyer, the Buyer shall be, subject to Premier Barriers informing the Buyer to the contrary, entitled to resell or use the Goods in the ordinary course of its business, but shall account to Premier Barriers for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured. The Buyer shall have no authority to enter into any contract of sale on behalf of Premier Barriers and any such contract shall accordingly be concluded in the name of the Buyer.

7.5. Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), Premier Barriers shall be entitled at any time to require the Buyer to deliver up the Goods to the Premier Barriers and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

7.6. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Premier Barriers, but if the Buyer does so all moneys owing by the Buyer to Premier Barriers shall (without prejudice to any other right or remedy of Premier Barriers) forthwith become due and payable.

7.7. Save as otherwise stated therein, the provisions of this clause 7 shall survive the termination of any contract made pursuant to these Conditions for whatever reason and in particular but without limitations by Premier Barriers by the acceptance of repudiation of this Contract by the Buyer.

8. WARRANTIES AND LIABILITY

The Price of Goods is based, in part, on the limits on Premier Barriers liability in these Conditions. The Buyers attention is drawn in particular to the conditions 8.2 to 8.9 (inclusive). The Buyer should make its own insurance arrangements for risks falling outside the scope of this cover.

8.1. Subject to the conditions set out below Premier Barriers warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of one year from the date of delivery to the Buyer.

8.2. The above warranty is given by Premier Barriers subject to the following conditions:

8.2.1. Premier Barriers shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer or where the Goods have been used in circumstances where their failure could directly endanger life in breach of clause 2.1;

8.2.2. Premier Barriers shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Premier Barriers’ and/or its suppliers instructions (whether oral or in writing), misuse or alteration or repair of the Goods without Premier Barriers’ approval;

8.2.3. Premier Barriers shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.

8.2.4. the above warranty does not extend to items, parts, materials or equipment not manufactured by the Premier Barriers, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Premier Barriers to the extent that Premier Barriers is able to pass on to the Buyer.

8.3. Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.4. Where the Goods are sold under a consumer transaction (as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer are not affected by these Conditions. 8.5. Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to Premier Barriers within fourteen days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If the Buyer does not notify Premier Barriers accordingly, the Buyer shall not be entitled to reject the Goods and Premier Barriers shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

8.6. In the event of a breach of warranty in Clause 8.1 Premier Barriers and/or its suppliers shall be entitled to repair or replace the Goods (or the part in question) free of charge or, at Premier Barriers’ or its suppliers sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but Premier Barriers shall have no further liability to the Buyer.

8.7. Except in respect of death or personal injury caused by Premier Barriers’ negligence or fraudulent misepresentation:

8.7.1. Premier Barriers shall not be liable to the Buyer for any loss of profit or any indirect, special or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever which arises out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions;

8.7.2. Premier Barriers entire liability to the Buyer arising under or in connection with these Conditions whether for negligence, breach of contract, or otherwise shall be the total price of the Goods;

8.8. Premier Barriers shall not be liable to the Buyer or be deemed to be in breach of these Conditions by reason of any delay in

performing, or any failure to perform, any of Premier Barriers’ obligations in relation to the Goods, if the delay or failure was due to any cause beyond Premier Barriers’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond Premier Barriers’ reasonable control: 8.8.1. act of God, explosion, flood, tempest, fire or accident;

8.8.2. war or threat of war, sabotage, insurrection, civil disturbance or requisition;

8.8.3. acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

8.8.4. import or export regulations or embargoes;

8.8.5. strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Premier Barriers or of a third party);

8.8.6. difficulties in obtaining raw materials, labour, fuel, parts or machinery; and

8.8.7. power failure or breakdown in machinery.

8.9. In the event of that Premier Barriers is prevented from carrying out its obligations under this Contract, in accordance with clause 8.7 above, Premier Barriers shall give notice of suspension as soon as is reasonably possible to the Buyer stating the date and the extent of the suspension and its cause. The Premier Barriers shall resume the performance of its obligations as soon as reasonably possible after the removal of the cause and shall so notify the Buyer. In the event that the cause continues for more than one month either party may terminate this Contract by giving the other party 30 days’ prior written notice.

9. INDEMNITY

9.1. If any claim is made against the Buyer that the Goods manufactured by Premier Barriers infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, Premier Barriers shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:

9.1.1. Premier Barriers is given full control of any proceedings or negotiations in connection with any such claim;

9.1.2. the Buyer shall give Premier Barriers all reasonable assistance for the purposes of any such proceedings or negotiations;

9.1.3. except pursuant to an award by a court from which there is no appeal, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Premier Barriers (which shall not be unreasonably withheld);

9.1.4. the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);

9.1.5. Premier Barriers shall be entitled to the benefit of, and the Buyer shall accordingly account to Premier Barriers for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and

9.1.6. without prejudice to any duty of the Buyer at common law, Premier Barriers shall be entitled to require the Buyer to take such steps as Premier Barriers may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Premier Barriers is liable to indemnify the Buyer under this clause.

10. INSOLVENCY OF BUYER

10.1. This clause applies if:

10.1.1. the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or 10.1.2. an encumbrancer takes possession, or a receiver is appointed, over any of the property or assets of the Buyer; or

10.1.3. the Buyer ceases, or threatens to cease, to carry on business; or

10.1.4. Premier Barriers reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

10.2. If this clause applies then, notwithstanding any other rights available to Premier Barriers, Premier Barriers may be entitled to cancel the Contract or suspend any deliveries without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately payable regardless of any previous agreement to the contrary and the Buyer’s right to resell the Goods set out in clause 7.3 above will automatically be revoked.

11. TERMINATION

Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of these conditions and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so.

12. EXPORT TERMS

12.1. In this clause 12 "Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.

12.2. Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 12 shall (subject to any special terms agreed in writing between the Buyer and Premier Barriers) apply notwithstanding any other provision of these Conditions.

12.3. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.

12.4. Unless otherwise agreed in writing between the Buyer and Premier Barriers, the Goods shall be delivered ex works. 12.5. The Buyer shall be responsible for arranging for testing and inspection of the Goods at Premier Barriers’ and/or its suppliers premises before shipment. Premier Barriers shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.

13. GENERAL

13.1. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. A notice is deemed to have been served as follows:-

13.1.1. if personally, by facsimile or E-mail, at the time of delivery;

13.1.2. if posted, at the time of expiration of 48 hours or (in the case of airmail) 7 days after the envelope containing the notice is posted.

13.2. Unless specifically stated to the contrary no failure or delay by either party in exercising any of its rights under these Conditions shall be deemed to be a waiver of that right, and no waiver by either party of any breach of these Conditions shall be considered as a waiver of any subsequent breach of the same or any other provision.

13.3. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected.

13.4. The Contract shall be governed by the laws of England, and the parties hereby submit to the non exclusive jurisdiction of the English Courts for all purposes arising in connection with the Contract.

13.5. These Conditions, and the documents referred to in them, constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Contract. Each of the parties acknowledges and agrees that in entering into this Contract, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this agreement or not) other than as expressly set out in this Contract. The only remedy available to it for breach of any warranty shall be for breach of contract under the terms of these Conditions. Nothing in this sub-clause shall, however, operate to limit or exclude any liability for fraud.

13.6. The Buyer shall not without the prior written consent of Premier Barriers assign, transfer, charge, declare a trust over or deal in this Contract or its rights under it or part of it, or purport to do any of the same.