Terms & Conditions
1.Conditions
1.Interpretation
1.1 Definitions:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with the Order Form and these Conditions.
Force Majeure Event: means any circumstance not in a party’s reasonable control.
Order: an order for the Goods submitted by the Customer in accordance with clause 2.
1.2 Interpretation:
A reference to writing or written includes emails.
2.Orders
2.1 Orders shall be given in writing. The Supplier may accept or decline Orders at its absolute discretion. The Supplier may, at its discretion, accept an amendment to an Order by the Customer.
2.2 The Supplier shall assign an order reference to each Order it accepts and notify the order reference to the Customer. Each party shall use the relevant order reference in all subsequent correspondence relating to the Order.
2.3 After confirming an Order, the Supplier shall as soon as is practicable inform the Customer of the Supplier’s estimated delivery date for the Order.
2.4 The Customer is responsible for ensuring that Orders and any applicable Specification submitted by the Customer are complete and accurate. The Customer shall give the Supplier all necessary information that the Supplier reasonably requires in order to fulfil each Order.
3.The Goods
3.1 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues, website or marketing materials are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
3.2 The Supplier reserves the right to amend the Specification at any time if required by any applicable statutory or regulatory requirements.
3.3 The Customer acknowledges that Goods are made bespoke to order and therefore the Customer shall have no right to cancel any Order.
4.Price and Payment
4.1 The Customer shall pay for Goods in accordance with this clause 4.
4.2 The Price excludes Amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to the receipt of a valid VAT invoice.
4.3 The Supplier may invoice the Customer for the price of Goods plus VAT at the prevailing rate (if applicable) on or at any time after it confirms the relevant Order to the Customer and the Customer shall pay invoices in full in cleared funds on the Payment Date and to the bank account nominated in writing by the Supplier.
4.4 If the Customer fails to make any due payment to the Supplier under the Contract by the Payment Date, then, without limiting the Supplier’s remedies under clause 11:
(a) the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclay Bank PLC’s base rate from time to time. Such interest 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; and
(b) the Supplier may suspend all deliveries of Goods until payment has been made in full.
4.5 The Customer shall pay all amounts due under the contract in full without set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by the Supplier to the Customer.
5.Delivery
5.1 The Supplier shall ensure that each delivery of Goods is accompanied by a delivery note which shows the type and quantity of Goods.
5.2 The Supplier shall endeavour to deliver Goods to the Delivery Location on the relevant Delivery Date.
5.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
5.4 Delivery Dates are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay or failure in delivery of any Goods that is caused by:
(a) a Force Majeure Event; or
(b) the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods; or
(c) failure to accept delivery.
5.5 If the Supplier fails to deliver Goods by the relevant Delivery Date, we will keep you informed of any changes to the Delivery Date.
5.6 If 10 Business Days after the day on which the Supplier attempted to make delivery of Goods the Customer has not taken delivery of those Goods, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods, or charge the Customer for any shortfall below the price of the Goods.
5.7 If the Supplier delivers up to and including [10]% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
5.8 The Supplier may deliver Orders by instalments, which shall be invoiced and paid for separately. The Customer may not cancel an instalment because of any delay in delivery or defect in another instalment.
6.Title and Risk
6.1 Risk in Goods shall pass to the Customer on completion of unloading the Goods at the Delivery Location.
6.2 Title to Goods shall only pass to the Customer once the Supplier receives payment in full (in cash or cleared funds) for them.
6.3 The Supplier may recover Goods in which title has not passed to the Customer. The Customer irrevocably licenses the Supplier, its officers, employees and agents, to enter any premises of the Customer (including with vehicles), in order to satisfy itself that the Customer is complying with the obligations in clause 6.3, and to recover any Goods in which property has not passed to the Customer.
6.4 The Supplier may at any time after delivery elect to transfer title in the Goods to the Customer, in which case the Customer shall immediately pay the Price to the Seller.
7.Product Recall
7.1 If the Customer is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Goods from the market (Recall Notice) it shall immediately notify the Supplier in writing enclosing a copy of the Recall Notice.
7.2 Unless required by law, the Customer may not undertake any recall or withdrawal without the written permission of the Supplier and only then in strict compliance with the Supplier’s instructions as to the process of implementing the withdrawal.
8.Supply of Services
8.1 The Supplier shall provide the Services:
(a) using such reasonable skill and care that it is usual to expect from a supplier of services similar to the Services; and
(b) in accordance with all applicable laws and regulations.
8.2 All intellectual property rights (including, but not limited to, copyright, design rights and database rights) relating to designs, documents, drawings and materials (together the Supplier Materials) prepared, conducted or produced by the Supplier, or on the Supplier’s behalf, for the Customer through the provision of the Services, will be owned by the Supplier in full.
8.3 The Customer may only use the Supplier Materials for the purposes of this Contract and shall not be entitled to exploit any of the Supplier Materials (including but not limited to any unused designs or concepts) for any other purpose, including for its own commercial advantage.
9.Intellectual Property
9.1 The Customer hereby grants the Supplier a non-exclusive licence to use the intellectual property rights solely for the purpose of or in connection with the supply of the Goods and Services under this Contract.
9.2 The Customer warrants that it owns or has the right to use all intellectual property rights (including but not limited to trade marks, branding or service marks) arising out of or in connection with the Supplier’s use of the Specification
9.3 The Customer indemnifies the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of any intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 9.1 shall survive termination of the Contract.
10.Limitation of Liability
10.1 Nothing in this Contract shall limit or exclude either party’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation; or
(c) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
10.2 Subject to clause 10.1:
(a) the Supplier shall not be liable to the Customer, for any:
(i) loss of profit; or
(ii) loss of goodwill; or
(iii) loss of business; or
(iv) loss of business opportunity; or
(v) loss of anticipated saving; or
(vi) loss or corruption of data or information; or
(vii) special, indirect or consequential damage
arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total sums paid and/or payable by the Customer for Goods under this Contract.
11.Termination
11.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the other party if:
(a) the Customer commits a material breach of any term of the Contract;
(b) the Customer 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;
(c) the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
11.2 Without limiting its other rights or remedies, the Supplier 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.
11.3 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 which existed at or before the date of termination.
11.4 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.
12.General
12.1 Provided it has complied with Clause 12.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
12.2 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
12.3 The Affected Party shall use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
12.4 Confidentiality
(a) Each party undertakes 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 or of any member of the group to which the other party belongs, except as permitted by clause 12.5(b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
(b) Each party may disclose the other party’s confidential information:
(i) 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 this agreement. 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 12.5; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) 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 this Contract.
12.5 Entire agreement.
This 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. 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
12.6 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.7 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.
12.8 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.
12.9 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.10(a); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.10 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
12.11 Governing law. This 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. 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.