1. Application of Conditions
1.1 The Supplier shall sell and the Customer shall purchase the Goods in accordance with any quotation or offer of the Supplier which is accepted by the Customer, or any order of the Customer which is accepted by the Supplier,
1.2 These Conditions shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
2. Interpretation
2.2 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
2.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
3. Basis of Sale
3.1 The Supplier's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Supplier.
3.3 Sales literature, price lists and other documents issued by the Supplier in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. An order placed by the Customer may not be withdrawn cancelled or altered prior to acceptance by the Supplier and no contract for the sale of the Goods shall be binding on the Supplier unless the Supplier has issued a quotation which is expressed to be an offer to sell the goods or has accepted an order placed by the Customer by whichever is the earlier of:
3.3.1 the Supplier's written acceptance;
3.3.2 delivery of the Goods; or
3.3.3 the Supplier's invoice.
3.4 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
4. Orders and Specifications
4.1 No order submitted by the Customer shall be deemed to be accepted by the Supplier unless and until confirmed in writing by the Supplier's authorised representative.
4.2 The specification for the Goods shall be those set out in the Supplier's sales documentation unless varied expressly in the Customer's order (if accepted by the Supplier). The Goods will only be supplied in the minimum units stated in the Supplier's price list of the sales outer as specified. Orders received for quantities other than these will be adjusted accordingly, illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Supplier are intended as a guide only and shall not be binding on the Supplier.
4.3 The Supplier 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 or regulatory requirements or, where the Goods are to be supplied to the Supplier's specification, which do not materially affect their quality or performance.
4.4 No order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier on the terms that the Customer shall indemnify the Supplier 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 the Supplier as a result of cancellation.
5. Price
5.1 The price of the Goods shall be the price listed in the Suppliers quotation current at the date of acceptance of the Customer's order or such other price as may be agreed in writing by the Supplier and the Customer.
5.2 Where the Supplier has quoted a price for the Goods other than in accordance with the Supplier's published price list the price quoted shall be valid for 30 days only or such lesser time as the Supplier may specify.
5.3 Except as otherwise stated under the terms of any quotation or in any price list of the Supplier, and unless otherwise agreed in writing between the Customer and the Supplier, all prices are inclusive of the Supplier's charges for packaging and transport according to preferred Incoterms.
5.4 The price is exclusive of any applicable value added tax excise, sales or taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Customer shall be additionally liable to pay to the Supplier.
6. Payment
6.1 Subject to Contract terms.
6.2 All payments shall be made to the Supplier as indicated within the Contract or invoice issued by the Supplier.
7. Delivery
7.1 Delivery of the Goods shall be made by the Supplier delivering the Goods to the place specified in the Customer's order and/or the Supplier's acceptance as the location to which the Goods are to be delivered by the Supplier.
7.2 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Supplier in writing.
7.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Supplier to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
7.4 If the Customer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Supplier shall be entitled upon given written notice to the Customer to store or arrange for the storage of the Goods and then notwithstanding the provision of Condition 10.1 of these Conditions risk in the Goods shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall pay to the Supplier all costs and expenses including storage and insurance charges arising from such failure.
8. Non-Delivery
8.1 If the Supplier fails to deliver the Goods or any of them on the Delivery Date other than for reasons outside the Supplier's reasonable control or the Customer's or its carrier's fault, if the Supplier delivers the Goods at any time thereafter the Supplier shall have no liability in respect of such late delivery;
9. Inspection/Shortage
9.1 The Customer is under a duty whenever possible to inspect the Goods prior to delivery or on collection as the case may be.
9.2 The Supplier shall be under no liability for any damage or shortages that would be apparent on reasonable careful inspection if the terms of this clause are not complied with and, in any event will be under no liability if a written complaint is not delivered to the Supplier within 7 days of delivery detailing the alleged damage or shortage.
9.3 In all cases where defects or shortages are complained of the Supplier shall be under no liability in respect thereof unless an opportunity to inspect the Goods is supplied to the Supplier before any use is made thereof or any alteration or modification is made thereto by the Customer.9.4 Subject to condition 9.3, the Supplier shall make good any shortage in the Goods as soon as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage.
10. Retention of Title
10.1 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, legal and beneficial title of the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods.
10.2 [Sub-clause 10.1 notwithstanding, legal and beneficial title of the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods and any other goods supplied by the Supplier and the Customer has repaid all moneys owed to the Supplier, regardless of how such indebtedness arose.]
10.3 Until payment has been made to the Supplier in accordance with these Conditions and title in the Goods has passed to the Customer, the Customer shall be in possession of the Goods as bailer for the Supplier and the Customer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Supplier and shall insure the Goods against all reasonable risks.
10.4 The Customer 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 the Supplier, but if the Customer does so all money owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.10.5 The Supplier reserves the right to repossess any Goods in which the Supplier retains title without notice. The Customer irrevocably authorises the Supplier to enter the Customer’s premises during normal business hours for the purpose of repossessing the Goods in which the Supplier retains title and inspecting the Goods to ensure compliance with the storage and identification requirements of sub-clause 10.4.
10.6 The Customer’s right to possession of the Goods in which the Supplier maintains legal and beneficial title shall terminate if;10.6.1 The Customer commits or permits any material breach of his obligations under these Conditions;
10.6.2 The Customer enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with his creditors;
10.6.3 The Customer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;10.6.4 The Customer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Customer, notice of intention to appoint an administrator is given by the Customer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer.
11. Assignment
11.1 The Supplier may assign the Contract or any part of it to any person, firm or company.
11.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.
12. Defective Goods
12.1 The Customer shall, within 7 days of the arrival of each delivery of the Goods at the Customer’s premises, notify the Supplier in writing of any defect by reason of which the Customer alleges that the Goods delivered are not in accordance with the Specification and which should be apparent on reasonable inspection.
12.2 If the Customer fails to give such notice then except in respect of any defect which is not one which would be apparent on reasonable inspection, the Goods shall be conclusively presumed to be in all respects in accordance with the Specification, and accordingly the Customer shall be deemed to have accepted the delivery of the Goods in question and the Supplier shall have no liability to the Customer with respect to that delivery.
12.3 If the Customer rejects any delivery of the Goods which are not in accordance with the Specification, the Supplier shall make good any shortage in the Goods as soon as it is reasonable to do so:
13. Customer's Default
13.1 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
13.1.1 cancel the order or suspend any further deliveries to the Customer;
13.1.2 appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and the Supplier) as the Supplier may think fit (notwithstanding any purported appropriation by the Customer); and
13.1.3 charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of 2.5 per cent per annum above Barclays PLC base rate in the UK, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
13.2 This condition applies if:
13.2.1 the Customer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract; or
13.2.2 the Customer becomes subject to an administration order or makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986 UK) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or
13.2.3 an encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or13.2.4 the Customer ceases, or threatens to cease, to carry on business; or
13.2.5 the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
13.3 If Condition 13.2 applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
14. Limitation of Liability
14.1 Subject to condition 7, condition 8 and condition 13, the following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
14.1.1 any breach of these conditions;
14.1.2 any use made (including but not limited to modifications) or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
14.1.3 any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
14.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
14.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
14.3.1 for death or personal injury caused by the Supplier's negligence; or
14.3.2 for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or
14.3.3 for fraud or fraudulent misrepresentation.
14.4 Subject to condition 14.2 and condition 14.3:
14.4.1 the Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
14.4.2 the Supplier shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
15. Confidentiality, Publications and Endorsements
15.1 The Customer undertakes to the Supplier that:
15.1.1 the Customer will regard as confidential the contract and all information obtained by the Customer relating to the business and/or products of the Supplier and will not use or disclose to any third party such information without the Supplier's prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Customer's default;
15.1.2 the Customer will not use or authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which the Supplier is licensed to use or which is owned by the Supplier upon any premises note paper visiting cards advertisement or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by the Supplier and (where appropriate) its Licensor;
15.1.3 the Customer will use all reasonable endeavours to ensure compliance with this Condition by its employees, servants and agents.
15.2 This Condition shall survive the termination of the Contract.
16. Communications
16.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or sent by electronic mail:
16.1.1 (in the case of communications to the Supplier) to its registered office or such changed address as shall be notified to the Customer by the Supplier; or
16.1.2 (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Supplier by the Customer.16.2 Communications shall be deemed to have been received:
16.2.1 if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or
16.2.2 if delivered by hand, on the day of delivery; or
16.2.3 if sent by fax or electronic mail on a Business Day prior to 4.00 pm, at the time of transmission and otherwise on the next Business Day.
16.3 Communications addressed to the Supplier shall be marked for the attention of Yuliya King.
17. Force Majeure
17.1 In the event that either party is prevented from fulfilling its obligations under this Contract by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout (subject to Sub-clause 8.2) the party shall not be deemed to be in breach of its obligations under this Contract. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.
17.2 Sub-clause 17.1 shall not apply with respect to strikes and lockouts where such action has been induced by the party so incapacitated.
17.3 Each party shall be liable to pay to the other damages for any breach of this Contract and all expenses and costs incurred by that party in enforcing its rights under this Contract.
17.4 If and when the period of such incapacity exceeds 3 months then this Contract shall automatically terminate unless the parties first agree otherwise in writing.
18. Waiver
No waiver by the Supplier of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
19. Severance
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 provision in question shall not be affected thereby.
20. Third Party Rights
A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999 UK.
21. Governing Law and Jurisdiction
The Contract shall be governed by the laws of England and the parties agree to submit to the exclusive jurisdiction of the English courts.