Terms & Conditions
TERMS AND CONDITIONS FOR THE SALE OF GOODS
These Conditions set out the basis on which Pro-Lock will enter into the Contract with the Customer for the sale of Goods.
Importantly, these Terms adopt the use of defined terms, which are used throughout these Terms and are as set out in clause 1 below. When reviewing these Terms, the Customer ought to cross-reference any defined term (which will be capitalised, such as “Consumers” for example) with the relevant definition.
Pro-Lock acknowledges that, acknowledges that, in entering into the Contract, the Customer will be either a Consumer or a Business. In some areas of these Terms, the Customer will have differing rights and obligations depending on whether it is entering into the Contract as a Consumer or a Business. These Terms will clearly identify which clauses only apply to Businesses, and which clauses only apply to Consumers. Where no such indication is made, the relevant clause shall apply to both Businesses and Consumers. Various clauses also contain further explanatory content for the benefit of Consumers.
In the event that any Consumer has any queries regarding its legal status, which of these Terms apply to it or the implications of the Contract being formed, then it must raise the same prior to entering into the Contract. Clause 17 (service of notices) set out how the Consumer can correspond with the Company.
Where the Customer is a Consumer, the Customer’s attention is drawn to the following clauses:
Index to Clauses
- Clause 2- Formation of Contract
- Clause 4 – Goods
- Clause 6 – Delivery of Goods
- Clause 9 – Price, Charges and Payment
- Clause 11 – Limitation of Liability
- Clause 13 – Termination
- Clause 15 – Consumer Cancellation Rights
DEFINITIONS AND INTERPRETATION
1.1. The following definitions apply in these Conditions:
Business: a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: these terms and conditions set out in this document and include any special terms and conditions agreed in writing between the Customer and Pro-Lock.
Confidential Information: information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, affairs and finances of a party for the time being confidential to it and trade secrets including, without limitation, technical data and know-how relating to its business or any of its or their suppliers, customers, agents, distributors, shareholders, management or business contacts and, whether or not such information (if in anything other than oral form) is marked confidential.
Consumer: the Business or Consumer to which or whom Pro-Lock wishes to provide the Goods and which wishes to purchase the Goods from Pro-Lock.
Contract: the contract between Pro-Lock and the Customer for the sale of Goods in accordance with these Conditions.
Customer: the Business or Consumer to which or whom Pro-Lock wishes to provide the Goods and which wishes to purchase the Goods from Pro-Lock.
Delivery Location: means Pro-Lock’s Premises, unless otherwise agreed between the parties in writing.
Force Majeure Event: any circumstance not within a party’s reasonable control including, without limitation acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, restrictions arising out any other unforeseeable event; collapse of buildings, fire, explosion or accident; and interruption or failure of utility service.
Goods: the goods (or any part of them), as set out in the Order, having been referred to initially within the Promotional Materials.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Loss: any actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, interest, liabilities, losses, penalties, proceedings and settlements, and Losses shall be construed accordingly.
Order: the Customer’s written purchase order for the supply of Goods.
Order Acknowledgement: means Pro-Lock’s written acknowledgement of the Order.
Promotional Materials: the Pro-Lock Website, Pro-Lock’s catalogues, brochures or such other applicable sales or promotional literature, materials or publications.
Shipping Confirmation: the written confirmation that the Goods are to be shipped and that the Order has been accepted issued by Pro-Lock.
Specification: means the description or specification for the Goods, as set out in the Quotation, or as otherwise agreed between the parties in writing.
Pro-Lock: Pro-Lock Safety Ltd t/as Pro-Lock, a company registered in Jersey (Channel Islands) with company number JE115351 and whose registered office is Le Carrefour, La Rue Mahier, St Mary, Jersey, JE3 3DW.
Pro-Lock’s Premises: means Unit 15, Sovereign Court, Wyrefields, Poulton Industrial Estate, Poulton-Le-Fylde, Lancashire, FY6 8JX, United Kingdom, or such other address that is notified to the Customer in writing from time to time.
Pro-Lock’s Website: pro-lock.co.uk or such other website operated or made available by Pro-Lock from time to time.
Quotation: means Pro-Locks written quotation for the Products.
1.2. Interpretation:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to legislation or a legislative provision is:
1.2.3.1 a reference to it as amended or re-enacted; and
1.2.3.2 includes all subordinate legislation made under that legislation or legislative provision,
1.2.4 any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 a reference to writing or written includes emails but not fax; and
1.2.6 unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
2. FORMATION AND BASIS OF CONTRACT: THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE
2.1 These Conditions apply to the Contract 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.
2.2 If the Customer wishes to purchase the Goods the Customer shall first be required to fill out the online enquiry form made available via the Website, or raise a written request for a Quotation. Any Quotation given by Pro-Lock shall not constitute an offer, and is only valid for a period of 60 calendar days from its date of issue.
2.3 Where the Customer accepts the basis of the Quotation, it shall be required to raise an Order for the Goods. An Order can be raised via email, by contacting info@pro-lock.co.uk.
2.4 When raising an Order, the Customer warrants (a warranty is a contractual promise which, if breached, will give rise to a damages claim) that:
2.4.1 if the Customer is a Consumer, it is at least 18 years old; and
2.4.2 if the Customer is a Business, it has the requisite authority on behalf of that Business to enter into the Contract with Pro-Lock.
2.5 The Order constitutes an offer by the Customer to enter into a Contract in accordance with these Conditions and shall not incorporate any other terms and conditions beyond those set out in the Contract. The Customer is responsible for ensuring that the terms of the Quotation, the Order, and the Specification are true, complete and accurate, and by raising an Order warrants that this is the case in every respect.
2.6 Once the Order has been placed by the Customer, Pro-Lock will assign the Order a unique reference number, which shall be provided to the Customer in writing, or where applicable, via an Order Acknowledgement or otherwise thereafter. To assist Pro-Lock with any queries regarding the Goods, the Customer shall quote the applicable reference number.
2.7 Pro-Lock may reject any Order that the Customer raises at its absolute discretion and for any reason whatsoever and the Order shall only be deemed to be accepted at the earlier of when Pro-Lock:
2.7.1 issues a Shipping Confirmation to the Customer; or
2.7.2 dispatches the Goods,
at which point the Contract shall come into existence. Where Pro-Lock rejects any Order raised by the Customer in accordance with this clause 2.7, Pro-Lock shall immediately refund any sums that have been paid by the Customer in advance on placing the Order.
2.8 If the Customer is a Business, it is responsible for ensuring and warrants that the terms outlined in the relevant published price list and where applicable, and the Order are complete and accurate.
2.9 Any samples, drawings, descriptive matter or advertising produced by Pro-Lock and any descriptions or illustrations contained in the Promotional Materials are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force and prior to raising the Order, it is the Customer’s responsibility to ensure that the Goods are suitable for the Customer’s intended application or use.
2.11 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 Pro-Lock shall be subject to correction without any liability on the part of Pro-Lock.
3 CHANGES TO THE CONTRACT
3.1 Pro-Lock reserves the right to change the Contract to reflect any changes in relevant laws and regulatory requirements, or to implement minor technical adjustments and improvements to the Goods. In the event that Pro-Lock makes a material change to the Contract then, subject to these Conditions, if the Customer is a Consumer it shall be entitled to terminate the Contract and receive a refund of any payments made for any Goods and not yet provided.
IF YOU ARE A BUSINESS
3.2 If the Customer is a Business, the Order, once accepted, may not be cancelled by the Customer except with the prior agreement of Pro-Lock in writing. Without prejudice to any further terms that may be agreed between the parties, any such agreement is on the basis that the Customer shall indemnify Pro-Lock in full against all Losses (which for the purpose of this clause shall include the cost of labour and materials, loss of profit, loss of business, loss of goodwill, loss of business opportunity, loss of anticipated saving and any other indirect, special or consequential Loss) incurred by Pro-Lock as a result of such cancellation.
IF YOU ARE A CONSUMER
3.3 If the Customer is a Consumer and it wants to change the Order once it has been accepted before the Goods have been delivered, then it will be required to contact Pro-Lock, outlining any changes that it would like to make to the Contract. If such changes are possible, then Pro-Lock will notify the Customer of such, also setting out any changes to the price of the Goods, timing of delivery and any other necessary changes, and this will be confirmed in writing. Thereafter, should the Customer not accept the changed and wish to terminate the Contract, clause 15 and clause 16 set out the procedure for doing so.
4 THE GOODS – THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE
4.1 The Customer shall indemnify Pro-Lock against all Losses (including those which are direct, indirect or consequential, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Pro-Lock in connection with any claim made against Pro-Lock for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with any Specification prepared by the Customer. This clause 4.1 shall survive termination of the Contract. If the Customer is a Consumer, this indemnity is a contractual promise by the Customer that it will pay to Pro-Lock (following a demand for payment by Pro-Lock) compensation for any Losses (please note the definition of Losses at clause 1 of these Conditions) that Pro-Lock suffers as a result of the Specification breaching any third party’s Intellectual Property Rights.
4.2 Pro-Lock reserves the right to amend the Specification of the Goods if required by any applicable statutory or regulatory requirements from time to time in force or to improve the Goods where to do so would not have a material adverse effect on the Customer.
4.3 If for any reason beyond its control, Pro-Lock is unable to supply a particular item of Goods, Pro-Lock will notify the Customer of such. Pro-Lock will use reasonable endeavours to replace it with an item of equivalent or superior standard and value; however, if it is unable to do so, then if the Customer is a Consumer only, then it may be able to terminate the contract (see clause 14).
5 DELIVERY – THIS CLAUSE ONLY APPLIES IF THE CUSTOMER IS A BUSINESS
5.1 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location, or such other location as the parties may agree .
5.2 The Order Acknowledgement (if provided by Pro-Lock in accordance with clause 5.4) shall set out the delivery date for the Goods. Occasionally, deliveries may be affected by a Force Majeure Event – see clause 18 for Pro-Lock’s responsibility if this happens.
5.3 If Pro-Lock requires the Customer to return any packaging materials, Pro-Lock shall ensure that that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Pro-Lock shall reasonably request. Returns of packaging materials shall be at Pro-Lock’s expense.
5.4 Where Pro-Lock issues to the Customer an Order Acknowledgement, this shall set out the date of the Order, all relevant Customer and Pro-Lock reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
5.5 Pro-Lock (or, where appropriate, the instructed carrier) shall deliver the Goods to the Delivery Location or such other location as the parties may agree.
5.6 Unless otherwise agreed, delivery of the Goods shall be on the basis of:
5.6.1 EXW (Delivery Location) (Ex Works – Incoterms 2020) where the final destination for the Goods is in the United Kingdom; or
5.6.2 FCA (Delivery Location) (Free Carrier – Incoterms 2020) where the final destination for the Goods is outside of the United Kingdom.
5.7 Any dates quoted for delivery are approximate only and Pro-Lock is under no obligation to provide an estimated delivery time. If a quoted date for delivery is not provided, delivery will be made within a reasonable time.
5.8 The time of delivery is not of the essence.
5.9 Pro-Lock shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event suffered by it or an instructed carrier (save where it is reasonably practicable to instruct another carrier) or the Customer’s failure to provide Pro-Lock with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.10 If delivery is on the basis of clause 5.6.1 and the Customer fails to take delivery of the Goods within ten (10) Business Days of Pro-Lock notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event:
5.10.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the fourth Business Day after the day on which Pro-Lock notified the Customer that the Goods were ready; and
5.10.2 Pro-Lock shall store the Goods until delivery (where applicable) or collection takes place and charge the Customer for all related costs and expenses (including insurance).
5.11 If 15 (fifteen) Business Days after the day on which Pro-Lock notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, Pro-Lock may resell or otherwise dispose of part or all of the Goods.
5.12 Pro-Lock may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6 DELIVERY – THIS CLAUSE ONLY APPLIES IF THE CUSTOMER IS A CONSUMER
6.1 Pro-Lock will deliver the Goods as soon as reasonably possible and otherwise within 30 days from the date on which the Contract came into existence (see clause 2.7).
6.2 Any dates quoted for delivery of the Goods are approximate only and Pro-Lock shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by Pro-Lock in writing.
6.3 If nobody is available at the Delivery Location to take delivery and the Goods cannot be posted through the letterbox at the Delivery Location, then Pro-Lock will take reasonable steps to leave the Goods either in a safe place at or near the Delivery Location or with a neighbour.
6.4 If, in the event that Pro-Lock is unable to deliver Goods to the Delivery Location, a safe place at or near the Delivery Location or with a neighbour, and if the Customer does not re-arrange delivery or collect them from Pro-Lock, Pro-Lock will contact the Customer for further instructions and may charge the Customer for storage costs and any further delivery costs. If, despite Pro-Locks’s reasonable efforts, it is still unable to contact the Customer or re-arrange delivery or collection, Pro-Lock may terminate the Contract (see clause 13).
6.5 The Customer will only own the Goods once Pro-Lock has received payment in full, whether or not delivery of the Goods has already taken place prior to this time. In the event that, following delivery of the Goods and Pro-Lock’s reasonable attempts to obtain payment from the Customer, the Customer fails to make payment, Pro-Locks reserve the right to enter the Customer’s premises and retrieve those in respect of which Pro-Lock has still not received payment.
6.6 If Pro-Lock fails to deliver the Goods (or any instalment) for any reason other than any cause beyond Pro-Lock’s reasonable control or the Customer’s fault, and Pro-Lock is accordingly liable to the Customer, Pro-Lock’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.7 If the Customer fails to take delivery of the Goods or fails to give Pro-Lock adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of Pro-Locks’s fault) then, without prejudice to any other right or remedy available to Pro-Lock, Pro-Lock may:
6.7.1 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
6.7.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
7 QUALITY
7.1 Pro-Lock warrants that on delivery, the Goods shall conform in all material respects with their description and any applicable Specification. The Customer’s attention is hereby specifically drawn to the advice and recommendations of Pro-Lock in any document or written information issued by Pro-Lock and the contents of the Specification regarding the purposes for which the Goods may safely or effectively be used, and in particular it should be noted by the Customer that Pro-Lock works as an anti-snatch device and is not completely tamper- proof and especially should not be used as a lifting or load-bearing device or used for any purpose which exceeds the safe load limits set out in the Specification and subject to the provisions of clause 7.
IF YOU ARE A BUSINESS
7.2 The Customer shall be required to inspect the Goods immediately upon receipt. In the event that:
7.2.1 there are any damages or defects in the Goods; or
7.2.2 an incorrect quantity of the Goods has been received; or
7.2.3 anything other than the Goods are received,
the Customer shall be required to notify Pro-Lock within 3 Business Days of receipt. Where no such notification is made by the Customer to Pro-Lock in accordance with this clause, the Goods shall be deemed to have been accepted in all respects by the Customer (Acceptance).
7.3 Without prejudice to clause 7.3 and subject to the Customer’s warranty at clause 2.8, Pro-Lock warrants that on delivery, and for a period of twelve (12) months from the date of delivery (or such other period as may be specified in the Promotional Materials (Warranty Period), the Goods shall:
7.3.1 conform in all material respects with their description;
7.3.2 be free from material defects in design, material and workmanship;
7.3.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
7.3.4 be fit for any purpose held out by Pro-Lock.
7.4 Pro-Lock is not the manufacturer of all the Goods available for sale within the Promotional Materials and to the greatest extent permissible by law, shall not be liable for any information supplied by it on or in conjunction with any of the Goods which are supplied by a third party. The Customer should read any information prior to using any Goods, and warrants that it does not rely on any such information provided by Pro-Lock.
7.5 Subject to clause 7.5, if:
7.5.1 the Customer gives notice in writing to Pro-Lock during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 7.3;
7.5.2 Pro-Lock is given a reasonable opportunity of examining such Goods; and
7.5.3 the Customer (if asked to do so by Pro-Lock) returns such Goods to Pro-Lock’s place of business at the Customer’s cost (such reasonable return costs to be refunded to the Customer if the Goods are found to not comply with the warranty set out in clause 7.3),
Pro-Lock shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full in addition to any reasonable return costs in accordance with clause 7.5.3.
7.6 Pro-Lock shall not be liable for the Goods’ failure to comply with the warranty set out in clause 7.4 in any of the following events:
7.6.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 7.5;
7.6.2 the defect arises because the Customer failed to follow Pro-Lock or the manufacturer’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
7.6.3 the defect arises as a result of Pro-Lock following any drawing or design supplied by the Customer;
7.6.4 the Customer alters or repairs such Goods without the written consent of Pro-Lock;
7.6.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
7.6.6 the Goods differ from their description provided as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.7 Except as provided in this clause 7, Pro-Lock shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 7.4.
7.8 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.
7.9 These Conditions shall apply to any repaired or replacement Goods supplied by Pro-Lock.
IF YOU ARE A CONSUMER
7.10 Where Pro-Lock is not the manufacturer of the Goods, and to the greatest extent permissible by law, it shall not be liable for any information supplied by it on or in conjunction with any of the Goods. The Customer should read any labels and information prior to using any Goods, and warrants that it does not rely on any such information provided by Pro-Lock.
7.11 If, following delivery of the Goods, the Customer notices any problems with the Goods, then it shall contact Pro-Lock:
7.11.1 via email, at info@pro-lock.co.uk; or
7.11.2 via telephone, at 01253 811 333; or
7.11.3 by contacting the number on the ‘Contact Us’ page on Pro-Lock’s Website.
7.12 Pro-Lock is under a legal duty to supply Goods that are in conformity with the Contract. As a Consumer, the Customer has certain legal rights in relation to Goods that are faulty or not as described. Pro-Lock is under a duty to supply Goods that are in conformity with the Contract, and the Consumer Rights Act 2015 states that the Goods must be as described, fit for purpose and of a satisfactory quality.
7.13 In the event that Pro-Lock breaches its obligations under this clause 7, then the Customer may have a right to terminate the Contract (please see clause 14).
8 TITLE AND RISK – THIS CLAUSE ONLY APPLIES IF THE CUSTOMER IS A BUSINESS
8.1 The risk in the Goods shall pass to the Customer on completion of delivery.
8.2 Title to the Goods shall only pass to the Customer once Pro-Lock receives payment in full (in cash or cleared funds) for the Goods and any other goods that Pro-Lock has supplied to the Customer in respect of which payment has become due.
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
8.3.1 hold the Goods as a bailee for Pro-Lock;
8.3.2 store the Goods at no cost to Pro-Lock held by the Customer so that they remain readily identifiable as Pro-Lock’s property and in satisfactory condition;
8.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.4 keep them insured against all risks for their full price from the date of delivery;
8.3.5 notify Pro-Lock immediately if it becomes subject to any of the events listed in clause 13.2; and
8.3.6 give Pro-Lock such information relating to the Goods as Pro-Lock may require from time to time.
8.4 Subject to clause 8.3, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Pro-Lock receives payment for the Goods. However, if the Customer resells the Goods before that time:
8.4.1 it does so as principal and not as Pro-Lock’s agent; and
8.4.2 title to the Goods shall pass from Pro-Lock to the Customer immediately before the time at which resale by the Customer occurs.
8.5 If before title to the Goods passes to the Customer the Customer fails to make any payment to Pro-Lock when due or becomes subject to any of the events listed in clause 13.2, then, without limiting any other right or remedy Pro-Lock may have:
8.5.1 the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
8.5.2 Pro-Lock may at any time:
8.5.2.1 require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
8.5.2.2 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
9 PRICE AND PAYMENT – THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE
9.1 The price of the Goods shall be as set out in the Quotation.
9.2 If the Customer is a Business, Pro-Lock may by giving notice to the Customer at any time before delivery of the Goods, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to any:
9.2.1 factor beyond Pro-Lock’s control (including foreign exchange fluctuations, increases in taxes and duties (which shall include import and export duties), and increases in labour, materials and other manufacturing costs);
9.2.2 request by the Customer to change the delivery and/or performance date(s), quantities or types of Goods ordered; or
9.2.3 delay caused by any instructions of the Customer or failure of the Customer to give Pro-Lock adequate or accurate information or instructions.
9.3 Pro-Lock shall invoice the Customer for the Goods in advance of delivery of the Goods, unless otherwise agreed in writing between the parties.
9.4 Unless otherwise agreed in writing between the parties, payment for the Goods must be made in advance of the Goods being delivered.
9.5 In the case of all other invoices or payments under the Contract, the Customer shall pay each invoice in full and in cleared funds within 28 days of the date of that invoice.
9.6 Payments made under the Contact shall be made to the bank account nominated in writing by Pro-Lock. Time for payment is of the essence, which means that if payment is not received within the required time frame then, in addition to its other rights and remedies under the Contract, Pro-Lock shall be entitled to terminate the Contract.
9.7 All amounts payable by the Customer under the Contract are inclusive of amounts in respect of value added tax chargeable from time to time (VAT). The amounts of VAT payable shall be included within the Order Acknowledgment issued to the Customer.
9.8 If the Customer fails to make any payment due to Pro-Lock under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of:
9.8.1 8% per annum above the Bank of England’s base rate from time to time if the Customer is a Business; or
9.8.2 2% per annum above the Bank of England’s base rate from time to time if the Customer is a Consumer.
Interest due under this clause 9.8 shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10 INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights subsisting in any Goods supplied to the Customer by or on behalf of Pro-Lock arising out of or in connection with the Contract shall remain vested in and belong to Pro-Lock (or its licensors).
10.2 Pro-Lock makes no warranty and provides no assurance to the Customer that the Goods shall not breach the rights (including Intellectual Property Rights) of any third parties.
11 LIMITATION OF LIABILITY – THIS CLAUSE ONLY APPLIES IF THE CUSTOMER IS A CONSUMER
Pro-Lock shall be responsible for loss or damage suffered by the Customer that is a foreseeable result of any failure by Pro-Lock to comply with the Contract but, except as set out in clause 11.2, Pro-Lock shall not be responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process.
11.2 Pro-Lock does not exclude or limit in any way its liability to the Customer where it would be unlawful to do so. This includes liability for death or personal injury caused by Pro-Lock’s negligence or the negligence of Pro-Lock’s employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of the Customers legal rights in respect of the Goods (as stated within clauses 7.10-7-12).
11.3 Pro-Lock does not attempt to limit or exclude its liability under these Conditions or the Contract for any breach of the Consumer Rights Act 2015 (including Pro-Lock’s legal obligation to supply Goods that are of satisfactory quality, to supply Goods that are fit for their particular purpose (so far as Pro-Lock is made aware of that purpose prior to the Order being placed) or to supply Goods that match their description).
12 LIMITATION OF LIABILITY AND INDEMNITY – THIS CLAUSE ONLY APPLIES IF THE CUSTOMER IS A BUSINESS
12.1 Nothing in the Contract shall limit or exclude Pro-Lock’s liability for:
12.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
12.1.2 fraud or fraudulent misrepresentation; or
12.1.3 any other matter for which it is not legally possible to limit or exclude its liability.
12.2 Subject to clause 12.1, Pro-Lock’s shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
12.2.1 loss of profit;
12.2.2 loss of sales or business;
12.2.3 loss of agreements or contracts;
12.2.4 loss of anticipated savings;
12.2.5 loss of use or corruption of software, data or information;
12.2.6 loss of damage to goodwill; and
12.2.7 any indirect, special or consequential Loss.
12.3 Subject to clause 12.1, Pro-Lock’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any Losses suffered or incurred by it arising under or in connection with this Contract shall be limited to the price paid by the Customer to Pro-Lock for the Goods in cleared funds under this Contract.
12.4 The Customer shall indemnify, keep indemnified and hold harmless Pro-Lock in full from and against any and all Losses suffered or incurred by Pro-Lock or arising out of or in connection with the acts or omissions (including any breach of or delay in complying with the obligations imposed by this Contract) by the Customer and any third party acting for it or on its behalf whether in contract, tort (including negligence), breach of statutory duty or otherwise.
13 TERMINATION OF THE CONTRACT BY PRO-LOCK
13.1 Without limiting its other rights or remedies, Pro-Lock may terminate the Contract with immediate effect by giving written notice to the Customer if:
13.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 Business Days of being notified in writing to do so;
13.1.2 the Customer repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to perform the Contract; or
13.1.3 becomes subject to any of the events listed in clause
13.1.4 13.2.
13.2 For the purposes of clause 13.1, the relevant events are:
IF YOU ARE A BUSINESS
13.2.1 the Customer (being a Business) 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 or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 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 IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
13.2.2 the Customer (being a Business) 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), 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;
13.2.3 the Customer (being a Business) 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 any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.2.4 the Customer (being a Business) suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
13.2.5 the Customer’s financial position deteriorates to such an extent that in Pro-Lock’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
IF YOU ARE A CONSUMER
13.2.6 the Customer (being a Consumer) is the subject of a statutory demand, bankruptcy petition, application or order; and
13.2.7 the Customer (being a Consumer) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation.
13.3 Without limiting its other rights or remedies, Pro-Lock may suspend provision of the Goods under the Contract or any other contract between the Customer and Pro-Lock if the Customer becomes subject to any of the events listed in clause 13.2.1 to clause 13.2.5 or Pro-Lock 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.
13.4 Without limiting its other rights or remedies, Pro-Lock 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.
14 TERMINATION AND THE RIGHT TO CHANGE YOUR MIND – THIS CLAUSE ONLY APPLIES IF THE CUSTOMER IS A CONSUMER
14.1 Where the Customer is a Consumer, it can terminate the Contract with Pro-Lock. The Customer’s rights when it terminates the Contract will depend on the Goods that it has purchased, whether there is anything wrong with those Goods, the conduct of Pro-Lock and when the Customer decides to terminate the Contract.
14.2 If the Customer is terminating the Contract for any reason set out in clause 14.2.1 to clause 14.2.5, then the Contract will be terminated immediately and Pro-Lock will refund the Customer in full for any Goods which have not been provided. These reasons are:
14.2.1 Pro-Lock has informed the Customer about an upcoming material change to the Contract which the Customer does not agree to (see clause 3.1);
14.2.2 Pro-Lock has informed the Customer about an error in the price or description of the Goods which is Pro-Lock’s fault and the Customer does not wish to proceed;
14.2.3 there is a risk that supply of the Goods may be significantly delayed because of events outside of Pro-Lock’s control (see clause 18 – Force Majeure);
14.2.4 Pro-Lock has suspended supply of the Goods for technical reasons, or notifies the Customer that it is going to suspend them for technical reasons, in each case for a period of more than 1 month; or
14.2.5 the Customer has a legal right to end the Contract because of something that Pro-Lock has done wrong. Please see clause 8 which sets out Pro-Lock’s legal obligations to the Customer in relation to the supply of Goods, the breach of which may give the Customer the right to terminate the Contract.
14.3 Where the Customer has changed its mind about the Goods, then the Customer may be able to receive a refund where it has changed its mind within the cooling off period. However, this refund may be subject to reductions and the Customer will be required to pay the costs of returning the Goods to Pro-Lock.
14.4 Where the Contract is for the sale of Goods, the Customer has 14 days after the day that the Goods have been delivered in order to change its mind, unless the Goods are split into several deliveries over different days. In this case the Customer has until 14 days after the day of the last delivery to change its mind about the Goods.
14.5 Where the Customer terminates the Contract under this clause 14, the Contract will end immediately and subject to the remaining provisions of these Conditions, Pro-Lock will refund any sums paid by the Customer for any Goods not provided.
15 HOW TO TERMINATE THE CONTRACT – THIS CLAUSE ONLY APPLIES IF THE CUSTOMER IS A CONSUMER
15.1 To terminate the Contract, please refer to clause 17 which sets out how notices are to be served under the Contract. In the event that the Customer wishes to terminate the contract via telephone, then it will also need to confirm such in writing in accordance with clause 18. Alternatively, the Customer can complete and return the Model Cancellation Form contained within Schedule 1 of these Conditions.
15.2 Where the Customer wishes to terminate the Contract after the Goods have been dispatched, the Customer is required to return the Goods to Pro-Lock, at its registered office address. Where the Goods are not suitable for posting, the Customer shall allow Pro-Lock (or its instructed carrier) to collect them, acting reasonably at all times. Where the Customer is exercising the right to change its mind, it must return the Goods within 14 days of informing Pro-Lock that it shall be terminating the Contract.
15.3 Pro-Lock agrees to pay the costs of returning the Goods where the instances in clause 14.2.1 to clause 14.2.5 apply and the Goods have been returned by an approved Pro-Lock carrier (and any such approval shall not be unreasonably withheld or delayed by Pro-Lock). In all other instances, which shall include where the Customer changes its mind, the Customer shall be responsible for the costs of returning the Goods.
15.4 If the Customer is responsible for the costs of returning the Goods and Pro-Lock is arranging for collecting to take place, Pro-Lock will charge the Customer for the associated collecting costs. Payment for charges under this clause 15.4 shall be made in accordance with the provisions of clause 10.
15.5 Any refunds that are due to the Customer under the Contract will be made using the same method of payment used by the Customer when purchasing the Goods and shall be made within 14 days from the day on which Pro-Lock receives the Goods back from the Customer.
15.6 In addition to those reductions referred to in clause 14.3 or otherwise under the Contract, Pro-Lock reserves the right to make further reductions to any refund to reflect any reduction in the value of the Goods, if such has been caused by the Customer’s mishandling of the Goods or any other damage caused by the Customer. In the event that Pro-Lock refunds the Customer before it has had the opportunity to inspect them, upon Pro-Lock’s identifying any loss of value, the Customer must pay to Pro-Lock an appropriate amount as compensation for that loss.
16 CONSEQUENCES OF TERMINATATION: THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE
16.1 Subject, in the case of the Customer being a Consumer, to any refunds (and reasonable deductions) being provided under clause 15 or 16, on termination of the Contract for any reason the Customer shall immediately pay to Pro-Lock all of Pro-Lock’s outstanding unpaid invoices and interest.
16.2 Termination of the Contract 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 this Contract that existed at or before the date of termination. If the Customer is a Consumer, this means the termination of the Contract will not affect the Consumers legal rights should Pro-Lock act in breach of its obligations under the Contract.
16.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
17 NOTICES
17.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
17.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company), its principal place of business (if a partnership, sole trader or otherwise), or if the Customer is a Consumer, its residential address; or
17.1.2 sent by email to contact details specified in the Proposal or Order or otherwise as notified previously by that party or contained in these Conditions.
17.2 Any notice shall be deemed to have been received:
17.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
17.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
17.2.3 if sent by email, at 9.00 am on the next Business Day after transmission.
17.3 This clause does not apply to service of any proceedings or other documents in any legal action, or where applicable, any arbitration or other method of dispute resolution.
18 FORCE MAJEURE
18.1 Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the Customer is a Consumer, please note the definition of Force Majeure Event at the beginning of these Conditions, which sets out the instances in which this clause 18 may be relevant.
18.2 Pro-Lock shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.
18.3 If a Force Majeure Event prevents, hinders or delays Pro-Lock’s performance of its obligations for a continuous period of more than sixty (60) days, the Customer may terminate the Contract immediately by giving written notice to Pro-Lock and source the Goods from a third party supplier.
19 CONFIDENTIALITY
19.1 Each party undertakes (an undertaking is a promise by each party under the Contract, which if breached could give rise to a claim that a serious breach of the Contract has taken place) that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 19.2.
19.2 Each party may disclose the other party’s confidential information:
19.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 19; and
19.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
19.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
20 GENERAL
20.1 Assignment and other dealings.
20.1.1 Pro-Lock may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with (Transfer) all or any of its rights or obligations under the Contract. Where the Customer is a Consumer, any assignment or otherwise under this clause shall not adversely affect the supply of the Goods.
20.1.2 The Customer may not Transfer any or all of its rights or obligations under the Contract without the prior written consent of Pro-Lock.
20.2 Entire agreement.
20.2.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
20.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20.4 Waiver. 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
20.6 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms as though it were a party to it and the provisions of the Contracts (Rights of Third Parties) Act 1999 are hereby excluded to the fullest extent permitted by law.
22.9 Jurisdiction.
22.9.1 Where the Customer is a Business, each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
22.9.2 Where the Customer is a Consumer, if the Customer lives in Scotland in can bring legal proceedings under the Contract in either the Scottish or the English courts. If the Customer lives in Northern Ireland it can bring legal proceedings in respect of the products in either the Northern Irish or the English courts.
20.7 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 the law of England and Wales.