“The Company” means
Professional Marketing Network Ltd. “Contract” means the Contract
between the Company and the Customer. “Goods” means the
products/materials and services sold and listed on the Company’s
invoice/sales order/delivery note.
“Business Day”
a day (other than a Saturday, Sunday or public holiday) when banks in
U.K. are open for business
“Conditions”
the terms and conditions set out in this document as amended from
time to time in accordance with clause 14.3.
“Contract”
the contract between the Supplier and the Customer for the sale and
purchase of the Goods in accordance with these Conditions.
“Customer”
the person or firm who purchases the Goods from the Supplier.
“Force Majeure
Event”
an event or circumstance beyond a party’s reasonable control.
“Goods”
the goods (or any part of them) set out in the Order
“Order”
the Customer’s order for the Goods, as set out in the Customer’s
purchase order form.
“Specification”
(a) any specification for the personalisation of Goods that in all
other respects are standard items as listed in the Seller’s
catalogue; or
(b) any specification for bespoke
items, where the Goods ordered are not standard items listed in the
Seller’s catalogue;
in either case that is agreed in
writing by the Supplier
“Supplier Professional Marketing
Network Ltd (registered in England and Wales with company number
10742036)
2.1. The
Company concludes contracts for the supply of Goods subject only to
these Conditions which are deemed to be
incorporated in all contracts
between the Company and the Buyer however concluded. The Buyer
accepts that these Conditions shall govern relations between himself
and the Company to the exclusion of any other terms including,
without limitation, conditions and warranties written or oral express
or implied even if contained in any of the Buyer’s documents which
purport to provide that the Buyer’s own Terms shall prevail. No
variation or qualification of these Conditions or of any quotation or
contract arising here from shall be valid unless agreed in writing by
the Secretary or a Director of the Company.
2.2. Orders
for goods are only accepted on these Conditions, expressly agreed
otherwise in writing by the Company.
2.3. A
full authorised Purchase Order including prices must be sent by the
Customer to the Company before any work on Goods can be commenced.
3.1.
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.
3.2. The
Order constitutes as an offer by the Customer to purchase the Goods
in accordance with these Conditions. The Customer is responsible for
ensuring that the terms of their Order and any applicable
Specification submitted by the Customer are complete and accurate.
3.3. The
Order shall only be deemed to be accepted when the Supplier issues a
written acceptance of the Order and price of goods, at which point
the Contract shall come into existence
3.4. The
Customer waives any right it might otherwise have to rely on any term
endorsed upon, delivered with or contained in:
3.4.1. any
documents of the Customer; or
3.4.2. any
framework agreement or other supply agreement to which the Customer
and Supplier might be parties, in either case, that is inconsistent
with these Conditions.
3.5. Any
samples, drawings, or advertising produced by the Supplier and
illustrations contained in the Supplier’s catalogues or brochures
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.
3.6. A
quotation for the Goods given by the Supplier shall not constitute an
offer. A quotation shall only be valid for a period of 90 (ninety)
days from its date of issue.
3.7. Sales
literature, price lists and other documents issued by the Seller 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 Buyer may not be withdrawn
cancelled or altered prior to acceptance by the Seller. No contract
for the sale of Goods shall be binding on the Seller unless the
Seller has issued a quotation which is expressed to be an offer to
sell the Goods; or has accepted an order placed by the Buyer, by
whichever is the earlier of:
3.7.1 the
Seller’s written acceptance;
3.7.2 delivery
of the Goods; or
3.7.3 the
Seller’s invoice.
3.8. 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 Seller shall
be subject to correction without any liability on the part of the
Seller.
3.9. Verbal
orders are normally confirmed to the customer by e-mail/fax. This
confirmation must be checked carefully and any errors corrected
immediately otherwise the order will be dispatched as per
confirmation and the company will not accept any subsequent
claims/complaints regarding order errors.
Prices contained in the
Company’s price lists, catalogues, booklets, advertising materials
or similar materials are for general guidance only.
4.1 The
price of the Goods shall be:
4.1.1. The
price for the goods shall be the price at the date of despatch or as
per the price agreed by the Seller in reference to clause 3.3, or, if
no price is quoted, the price set out in the Supplier’s published
price list in force as at the date of despatch.
4.1.2. If
between the date of order of the Goods and the date of delivery of
the Goods there is an increase in the cost of the Goods, packing,
carriage, delivery, duty, tax or any other impost thereon (including
a rise caused by the devaluation or revaluation of any currency) the
price shall be adjusted by adding thereto the amount of any increase
in such costs or levels whether or not such an increase was or should
have been foreseeable by the Company.
4.2 The
price of the Goods includes delivery to the Delivery Location via
commercial courier nominated by the Seller, using standard delivery
service, unless a Carriage charge is applicable. Where the Customer
requests, and the Supplier agrees to provide, a special delivery
service, the Supplier shall notify the Customer of the additional
cost and the price of the Goods shall be increased accordingly
4.3 If,
however, it is expressly agreed in writing between the Company and
the Buyer that the price of the Contract should be a fixed price and
not subject to any variation either by rise or fall in the costs or
levels referred to in (ii) above such fixed price will be the price
of the Contract.
4.4. The
Supplier may, by giving notice to the Customer at any time before
delivery, increase the price of the Goods to reflect any increase in
the cost of the Goods that is due to:
4.4.1. any
factor beyond the Supplier’s control (including foreign exchange
fluctuations, increases in taxes and duties, and increases in labour,
materials and other manufacturing costs);
4.4.2. any
request by the Customer to change the delivery date(s), quantities or
types of Goods ordered, or the Specification; or
4.4.3. any
delay caused by any instructions of the Customer or failure of the
Customer to give the Supplier adequate or accurate information or
instructions.
4.5. The
price of the Goods 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, subject to the receipt of a valid
VAT invoice.
4.6. The
Supplier may invoice the Customer for the Goods on or at any time
after the date of the despatch of the goods.
4.7. Without
the requirement to give prior notice to the Customer, the Supplier
may at its absolute discretion withdraw any discount arrangements
that are generally applied to purchases made by the Customer.
5.1. Delivery
will be effected by the Company at the Buyer’s premises or to such
other place as is mutually agreed. The Goods shall be at the Buyer’s
risk on either entry on to the Buyer’s premises or on being placed
into custody on the Buyer’s behalf and should be insured
accordingly.
5.2. Notwithstanding
the method of delivery, the Buyer shall carefully examine the Goods
on receipt of the same and shall give written notice of any short
delivery or over delivery or damage in transit which must be received
by the Company within 3 days of receipt of the Goods and in the case
of any defects reasonably discoverable on careful examination written
notice which must be received by the Company within 10 days of
receipt of the Goods. The Customer must also notify the Company in
writing of non-delivery within 5 working days of the date of despatch
advised to the Customer
5.3. The
Company will endeavor to despatch goods to the times quoted. The
Company shall ensure the Goods are securely packaged and will not be
liable for any loss arising from delays in despatch, regardless of
cause.
5.4. In
the event that the Company and the Buyer agree to transfer the Goods
by a method other than delivery effected by the Company then the risk
of loss or damage of any kind in the Goods shall pass to the Buyer if
Collection by or on behalf of the Buyer or by an independent carrier
for despatch to the Buyer.
5.5. Delivery
may be temporarily suspended if the Customer is overdue in making
payment for any goods supplied to the Customer by the Company.
5.6. Delivery
is completed on the completion of unloading of the Goods at the
Delivery Location
5.7. The
Buyer shall pay to the Company in addition to the purchase price
charges properly incurred by the Company in connection with the
carriage of goods ordered when the Goods ordered are valued at under
£1000 and/or are to be delivered to Northern Ireland, Eire and other
export destinations. Goods valued at £250 and more are supplied free
of carriage if delivered to the United Kingdom mainland only.
5.8. The
Customer shall accept the Goods when they are tendered for delivery
at the Delivery Location. The Customer shall provide such access,
personnel, facilities and assistance as may be required to facilitate
the safe unloading of the Goods at the Delivery Location.
5.9. If
the Buyer fails to take delivery of the Goods or any part of them on
the Delivery Date and/or fails to provide any instructions,
documents, licenses, consents or authorisations required to enable
the Goods to be delivered on that date, the Seller shall be entitled
upon giving written notice to the Buyer of any extra cost incurred to
deliver and store or arrange for the storage of the Goods. The Buyer
shall pay to the Seller all costs and expenses including storage and
insurance charges arising from such failure.
5.10 The
Supplier may deliver the Goods by instalments, which shall be
invoiced and paid for separately. Any delay in delivery or defect in
an instalment shall not entitle the Customer to cancel any other
instalment.
6.0. Unless
expressly agreed in writing with the Buyer or stated on the face
hereto payment shall be made for the Goods in full in sterling or the
Buyer’s currency at the option of the Company without any deduction
of deferment on account of any disputes or cross claims whatsoever
not later than 30 days following the date of the Company’s invoice
in respect of the Goods. Where full payment is not received by the
due date interest may accrue on the sum outstanding at the rate of 5%
above the Bank of England base rate, compounded monthly &
calculated on a daily basis but without prejudice to the Company’s
rights to receive payments on the due dates.
6.1. The
Customer shall pay for the Goods in full and in cleared funds prior
to delivery unless clause 6.2 applies.
6.2. Where:
6.2.1. the
Customer has an approved credit account with the Supplier; and
6.2.2. the
price of the Goods, when added to the total of all other sums for the
time being due from the Customer to the Supplier, falls within the
credit limit on such approved account,
The Customer shall pay the invoice
in full and in cleared funds no later than 30 days following the date
of which the invoice is rendered, unless otherwise agreed and signed
for in writing by the Seller.
6.3. If
the Customer fails to make any payment due to the Supplier under the
Contract by the due date for payment, then;
6.3.1. the
Customer shall pay interest on the overdue amount at the rate of 5%
per annum above The Bank of England’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;
6.3.2. the
Supplier may recover from the Customer all costs, expenses and other
liabilities (including legal costs on a full indemnity basis) that
the Supplier incurs in obtaining payment of sums due.
6.4. If
in the reasonable opinion of the Company the credit rating of the
Buyer becomes unsatisfactory prior to delivery or if the Buyer fails
to perform or observe any obligations on its part to be performed
under this or any other Contracts made with the Company the Company
shall be entitled at its discretion to delay delivery of the Goods
until payment thereof is rendered by the Buyer or until such
obligations are duly performed or observed or by notice in writing to
the Buyer unilaterally to cancel the Contract for the supply of
goods.
6.5. Payment
shall be made to the bank account nominated in writing by the
Supplier. Time for payment is of the essence.
6.6. If
the Customer does not have a credit agreement with the supplier, the
customer shall pay for the goods in full prior to the order being
processed or dispatched.
6.7. The
Customer shall pay all amounts due under the Contract in full without
any set-off, counterclaim, deduction or withholding (except for any
deduction or withholding required by law). The Supplier may at any
time, without limiting any other rights or remedies it may have, set
off any amount owing to it by the Customer against any amount payable
by the Supplier to the Customer.
6.8. Without
the requirement to give prior notice to the Customer, the Supplier
may at its absolute discretion cancel any previously approved credit
account or reduce the credit limit on such account.
6.9. All
payments shall be made to the Seller in the currency of the price
stated in the Contract at its office as indicated on the form of
acceptance or invoice issued by the Seller without any deduction
credit or set off whatsoever.
6.10. The
Seller is not obliged to accept orders from any customer or buyer who
has not supplied the Seller with references satisfactory to the
Seller; if at any time the Seller is not satisfied as to the
creditworthiness of the Buyer the seller may withdraw the credit
facility given to the Buyer in which event the Buyer shall be
required to give security deposits in respect of goods already
shipped and no further goods will be delivered to the Buyer other
than against cash payment and notwithstanding any payment terms
contained in the Contract, all amounts owing to the Seller by the
Buyer shall be immediately payable in cash.
6.11. The
Customer cannot delay or refuse payment for any alleged defects in
the goods which the Company undertakes to remedy.
6.12 First
orders can be accepted on a Pro Forma Invoice basis after which a
credit application can be made. Credit limits will be assigned in
conjunction with our funders, HSBC Invoice Finance.
7.0. Risk
in Goods shall pass to the Buyer on Delivery and must be paid for
notwithstanding the destruction thereof or any damage thereto however
caused;
7.1. Title
to Goods shall not pass to the Buyer until the Company has received
payment in full (in cash or cleared funds) for such Goods;
7.2. Until
title to Goods has passed to the Buyer, the Buyer shall:
7.2.1 hold
such Goods on a fiduciary basis as the Company’s bailee;
7.2.2 store
such Goods separately from all other goods held by the Buyer so that
they remain readily identifiable as the Company’s property;
7.2.3 not
remove, deface or obscure any identifying mark or packaging on or
relating to such Goods; and
7.2.4 maintain
such Goods in satisfactory condition and keep them insured on the
Company’s behalf for their full price against all risks with an
insurer that is reasonably acceptable to the Company. The Buyer shall
obtain an endorsement of the Company’s interest in the Goods on its
insurance policy, subject to the insurer being willing to make the
endorsement. On request the Buyer shall allow the Company to inspect
such Goods and the insurance policy, but the Buyer may resell or use
Goods in the ordinary course of its business.
7.3. The
Company may at any time revoke the Customer’s power of sale by
notice to the Customer if the Customer is in fault for longer than
thirty days in the payment of any sum whatsoever due to the Company
(whether in respect of the goods or any other goods supplied at any
time by the Company to the Customer for any reason whatsoever) or if
the Company has bona fide doubts as to the solvency of the Customer.
7.4. The
Customer’s power of sale shall automatically cease if a receiver is
appointed over any of the assets or the undertaking of the Customer
or a winding up order is made against the Customer or the Customer
goes into voluntary liquidation (otherwise than for the purpose of
reconstruction or amalgamation) or calls a meeting of or makes any
arrangement or composition with creditors or commits any act of
bankruptcy.
7.5. Upon
determination of the Customer’s power of sale under (7.3) and (7.4)
above the Customer shall place the goods and the new products at the
Company’s disposal and the Company shall be entitled to enter upon
any premises of the Customer for the purpose of removing the goods
and to remove such goods from the premises (including severance from
the realty where necessary).
7.6. If
before title to Goods passes to the Buyer the Buyer becomes subject
to any of the events in condition 7 (7.7) (7.7.1) to (7.7.4) then
provided that such Goods have not been resold and without limiting
any other right or remedy the Company may have, the Company may at
any time require the Buyer to deliver up such Goods and, if the Buyer
fails to do so promptly, enter any premises of the Buyer or of any
third party where the relevant Goods are stored in order to recover
them.
7.7. This
condition 7 (7.7) shall apply if:
7.7.1. the
Buyer makes a composition or voluntary arrangement with its creditors
or (being an individual or firm) becomes bankrupt or (being a
company) enters administration or goes into liquidation (otherwise
than for the purposes of amalgamation or reconstruction), or a
moratorium comes into force in respect of the Buyer (within the
meaning of the Insolvency Act 1986); or
7.7.2. an
encumbrancer takes possession, or a receiver is appointed, of any of
the property or assets of the Buyer; or
7.7.3. the
Buyer ceases, or threatens to cease, to carry on business; or
7.7.4. the
Company reasonably apprehends that any of the events mentioned above
is about to occur in relation to the Buyer and notifies the Buyer
accordingly. If this clause applies then, without limiting any other
right or remedy available to the Company, the Company may cancel the
Contract (or any other uncompleted contract between the parties) or
suspend any further deliveries under the Contract (or any other
uncompleted contract between the parties) without any liability to
the Buyer, 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.
7.8. In
the event of the determination or repudiation of the Contract
(howsoever occurring) the Company is hereby irrevocably authorised to
enter on to the premises of the Buyer and repossess the Goods and any
other goods in the Buyer’s possession the property in which is
vested in the Company.
7.9. The
Buyer will keep the Goods free from and will indemnify the Company
against any charge, lien or other incumbrance thereon.
8.1. The
Company shall have a general lien on all goods and property of the
Customer in the possession of the Company in respect of sums
outstanding and due from the Customer to the Company under this or
any other agreement between the Customer and the Company.
8.2. The
Company may, after giving 14 days’ notice to the Customer of the
intension to do so, dispose of the goods and property and use the
proceeds of sale against the due sums.
9.1. The
Supplier warrants that upon delivery the Goods shall:
9.1.1. conform
in all material respects with their description and any applicable
Specification; and
9.1.2. be
free from material defects in design, material and workmanship. 9.2.
Subject to clause 9.3, if:
9.2.1. the
Customer gives notice in writing to the Supplier in accordance with
clause 9.4;
9.2.2. the
Supplier is given a reasonable opportunity of examining such Goods;
and
9.2.3. the
Customer (if asked to do so by the Supplier) returns such Goods to
the Supplier’s place of business at the Customer’s cost, the
Supplier shall, at its option, repair or replace the defective Goods,
or refund the price of the defective Goods in full.
9.3. The
Supplier shall not be liable for the Goods’ failure to comply with
the warranty set out in clause 9.1 in any of the following events:
9.3.1. the
Customer makes any further use of such Goods after giving notice in
accordance with clause 9.2;
9.3.2. the
defect arises because the Customer failed to follow the Supplier’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;
9.3.3. the
defect arises as a result of the Supplier following any drawing,
design or Specification supplied by the Customer;
9.3.4. the
Customer alters or repairs such Goods without the written consent of
the Supplier;
9.3.5. the
defect arises as a result of fair wear and tear, wilful damage,
negligence, or abnormal storage or working conditions; or
9.3.6. the
Goods differ from their description or the Specification as a result
of changes made to ensure they comply with applicable statutory or
regulatory requirements.
9.4. A
claim by the Customer 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
Customer) be notified to the Supplier within 3 (three) days from the
date of delivery
or (or where the defect or failure
was not apparent on reasonable inspection) within a reasonable time
after discovery of the defect or failure. If delivery is not refused,
and the Customer does not notify the Supplier accordingly, the
Customer shall not be entitled to reject the Goods and the Supplier
shall have no liability for such defect or failure, and the Customer
shall be bound to pay the price as if the Goods had been delivered in
accordance with the Contract.
9.5. Except
as provided in this clause 9, the Supplier shall have no liability to
the Customer in respect of the Goods’ failure to comply with the
warranty set out in clause 9.1.
9.6. 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.
9.7. These
Conditions shall apply to any repaired or replacement Goods supplied
by the Supplier.
10.1. Unless
the Goods are defective (meaning that they do not comply with the
warranty set out in clause 9.1), then the Supplier will not accept
the return of Goods by the Customer unless:
10.1.1. such
return has been agreed in writing by the Supplier’s returns
department, who may provide the Customer with a returns reference
number;
10.1.2. the
Customer pays to the Supplier the handling charge specified by the
Supplier;
10.1.3. the
Customer arranges at its own expense for the relevant Goods to be
returned to such location as the Supplier may specify, accompanied by
a consignment note quoting any returns reference number; and
10.1.4. the
Goods are returned in the same condition as they were in when
delivered by the Supplier, are fit for resale by the Supplier.
10.2. Unless
the Goods are defective (meaning that they do not comply with the
warranty set out in clause 9.1), the Supplier will not accept the
return of personalised or bespoke Goods.
10.3. Where
the Supplier agrees that the Customer may return the Goods, and the
Customer complies with the obligations pursuant to clauses 10.1.2 and
10.1.4, then only that part of the Order which relates to the Goods
so returned shall be deemed to be cancelled.
10.4. Save
as provided in this clause, no Order may be cancelled by the Customer
except with the written agreement of the Supplier and on terms that
the Customer shall indemnify the Supplier in full against all loss
(including loss of profit), cost, damages, charges and expenses
incurred by the Supplier as a result of cancellation.
10.5 In
addition to clause 10.1 to 10.4 Goods must be kept in stock may be
returned to us only by prior agreement at customers’ carriage cost
and subject to the following conditions:
10.5.1 Goods
returned must be in original packaging i.e. resalable
condition
10.5.2 Goods
must be in complete units of sale in the original packaging, no part
boxes (if applicable)
10.5.3 A
notification of return must be made within 3 days of delivery.
Failure to do this will result in a handling charge of up to 20%. It
is essential to quote our delivery note number for a credit note to
be issued
10.5.4 No
returns will be accepted 7 days from delivery
10.6 If
goods supplied by us were incorrectly supplied please notify us
immediately and appropriate credit will be given upon receipt of the
goods providing they are still in saleable condition as per 10.5
10.7 Orders
for special products and customized packaging are NON RETURNABLE
10.8 Items
that have been customized (e.g. embroidered, printed etc) by The
Buyer are NON-RETURNABLE
Where the Customer requests (and
the Supplier agreed to provide) samples of Goods, the Supplier shall
be entitled to invoice the Customer the full price of such samples
upon dispatch. Such invoice will be credited provided that the
Customer returns the relevant items at its own expense in unused and
undamaged condition within 30 (thirty) days of delivery. If the
relevant items are not so returned, the Customer will become
immediately liable to pay the amount invoiced.
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 period of delay or
non-performance continues for 4 weeks, the party not affected may
terminate this Contract by giving 14 days written notice to the
affected party. Without limiting the foregoing, the following shall
be regarded as causes beyond the Company’s reasonable control:
Act of God, explosion, food,
tempest, free or accident;
war or threat of war, sabotage,
insurrection, civil disturbance or requisition;
acts, restrictions, regulations,
bye-laws, prohibitions or measures of any kind on the part of any
governmental, parliamentary or local authority;
import or export regulations or
embargoes;
strikes, lock-outs or other
industrial actions or trade disputes (whether involving employees of
the Seller or of a third party);
difficulties in obtaining raw
materials, labour, fuel, parts or machinery;
power failure or breakdown in
machinery.
13.1. The
risk in the Goods shall pass to the Customer on completion of
delivery.
13.2. Title
to the Goods shall not pass to the Customer until the earlier of:
13.2.1. the
Supplier receives payment in full (in cash or cleared funds) for the
Goods and any other goods that the Supplier has supplied to the
Customer, in which case title to the Goods shall pass at the time of
payment of all such sums; and
13.2.2. the
Customer resells the Goods, in which case title to the Goods shall
pass to the Customer at the time specified in clause 13.4.
13.3. Until
title to the Goods has passed to the Customer, the Customer shall:
13.3.1. store
the Goods separately from all other goods held by the Customer so
that they remain readily identifiable as the Supplier’s property;
13.3.2. not
remove, deface or obscure any identifying mark or packaging on or
relating to the Goods;
13.3.3. maintain
the Goods in satisfactory condition and keep them insured against all
risks for their full price from the date of delivery;
13.3.4. notify
the Supplier immediately if it becomes subject to any of the events
listed in clause 14.1; and
13.3.5. give
the Supplier such information relating to the Goods as the Supplier
may require from time to time.
13.4. Subject
to clause 13.5, the Customer may resell or use the Goods in the
ordinary course of its business (but not otherwise) before the
Supplier receives payment for the Goods. However, if the Customer
resells the Goods before that time:
13.4.1. it
does so as principal and not as the Supplier’s agent; and
13.4.2. title
to the Goods shall pass from the Supplier to the Customer immediately
before the time at which resale by the Customer occurs.
13.5. If
before title to the Goods passes to the Customer, the Customer
becomes subject to any of the events listed in
clause 14.1, then, without
limiting any other right or remedy the Supplier may have:
13.5.1. the
Customer’s right to resell the Goods or use them in the ordinary
course of its business ceases immediately; and
13.5.2. the
Supplier may at any time:
13.5.2.1. require
the Customer to deliver up all Goods in its possession that have not
been resold, or irrevocably incorporated into another product; and
13.5.2.2. 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.
13.6. Ownership
of the goods shall remain with The Seller who reserves the right to
dispose of the goods until payment has been received. Such payment
shall become due immediately upon the commencement of any act or
proceeding in which the buyer’s solvency is involved. If payment is
overdue in whole or in part the company may (without prejudice to any
of its other rights) recover or resell the goods or any part of them
and may enter upon the buyers premises by its servants or agents for
that purpose. Until the Company is paid in full all moneys
outstanding the relationship of the buyer to the Company shall be
fiduciary in respect of the goods or other goods in which they are
incorporated or used and if the same are sold by the buyer the
Company shall have the right to trace the proceeds thereof.
14.1. Without
limiting its other rights or remedies, the Supplier may terminate
this Contract with immediate effect by giving written notice to the
Customer if:
14.1.1. 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
14 days of that party being notified in writing to do so;
14.1.2. 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;
14.1.3. the
Customer suspends, threatens to suspend, ceases or threatens to cease
to carry on all or a substantial part of its business; or
14.1.4. the
Customer’s financial position deteriorates to such an extent that
in the Supplier’s opinion the Customer’s capability to adequately
fulfil its obligations under the Contract has been placed in
jeopardy.
14.2. Without
limiting its other rights or remedies, the Supplier may suspend
provision of the Goods under the Contract or any other contract
between the Customer and the Supplier if the Customer becomes subject
to any of the events listed in clause 14.1.1 to clause 14.1.4, or the
Supplier 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.
14.3. 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.
14.4. On
termination of the Contract for any reason the Customer shall
immediately pay to the Supplier all of the Supplier’s outstanding
unpaid invoices and interest.
14.5. 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. 14.6. 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.
15.1. Nothing
in these Conditions shall limit or exclude the Supplier’s liability
for:
5.1.1. death
or personal injury caused by its negligence, or the negligence of its
employees, agents or subcontractors (as applicable);
15.1.2. fraud
or fraudulent misrepresentation;
15.1.3. breach
of the terms implied by section 12 of the Sale of Goods Act 1979;
15.1.4. defective
products under the Consumer Protection Act 1987; or
15.1.5. any
matter in respect of which it would be unlawful for the Supplier to
exclude or restrict liability.
15.2. Subject
to clause 15.1:
15.2.1.the Supplier shall under no
circumstances whatsoever be liable to the Customer, whether in
contract, tort (including negligence), breach of statutory duty, or
otherwise, for any loss of profit, or any indirect or consequential
loss arising under or in connection with the Contract; and
15.2.2.the
Supplier’s total liability to the Customer in respect of all other
losses arising under or in connection with the Contract, whether in
contract, tort (including negligence), breach of statutory duty, or
otherwise, shall in no circumstances exceed the price of the Goods.
15.3. In
addition the Company shall in no circumstances be liable:
15.3.1 for
any consequential or special loss or damage or claim by the Buyer
including without limitation, delay, detention, loss of production,
loss of profit, loss of time, charges or liability to third parties;
15.3.2 for
any loss or damage in excess of the contract price (or in the case of
defect in a part only then the cost of manufacture of such part) and
these limitations will apply (even in the case of breach of a
fundamental term of repudiation by the Company and) even if further
performance of the contract is frustrated.
15.4. The
Seller shall be under no liability in respect of any defect arising
from fair wear and tear, or any willful damage, negligence,
subjection to abnormal conditions, failure to follow the Seller’s
instructions (whether oral or in writing), misuse or alteration of
the Goods without the Seller’s approval, or any other act or
omission on the part of the Buyer, its employees or agents or any
third party.
The customer hereby represents
and warrants that:
16.1. the
Customer is not included on any list of restricted entities, persons
or organisations published by any member state of the European Union,
the United States of America government, the United Nations or other
applicable national governments (collectively, the “Sanctions
Lists”) and neither is it owned or controlled by a person or entity
which is included on such Sanctions Lists.
16.2 the
receipt and/or the transportation and/or the delivery of the Goods to
its intended destination and/or end users will not constitute a
breach or violation by the Supplier of any applicable laws and
regulations including sanction/embargo/ export control laws
(including those of the European Union, the United States of America
and the United Nations, where applicable) and will also not expose us
to any sanction or penalty imposed by any state, country,
international governmental organization or other competent authority.
17.1. Assignment
and other dealings.
17.1.1. The
Supplier may at any time assign, transfer, mortgage, charge,
subcontract or deal in any other manner with all or any of its rights
or obligations under the Contract.
17.1.2. The
Customer may not assign, transfer, mortgage, charge, subcontract,
declare a trust over or deal in any other manner with any or all of
its rights or obligations under the Contract without the prior
written consent of the Supplier.
17.2. Entire
agreement.
17.2.1. 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.
17.2.2. 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 this agreement.
Each party agrees that it shall have no claim for innocent or
negligent misrepresentation or negligent misstatement based on any
statement in this agreement.
17.3. Variation.
No variation of this Contract shall be effective unless it is in
writing and signed by the parties (or their authorised
representatives).
17.4. 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.
17.5. Severance.
If at any time any one or more of these conditions or any part
thereof is held to be or becomes invalid, illegal or unenforceable in
any respect under any applicable law, the validity and enforceability
of the remaining conditions shall not in any way be affected or
impaired thereby.
17.6. Notices.
17.6.1. Any
notice or other communication given to a party under or in connection
with the Contract shall be in writing, addressed to that party at its
registered office (if it is a company) or its principal place of
business (in any other case) or such other address as that party may
have specified to the other party in writing in accordance with this
clause, and shall be delivered personally, sent by pre-paid first
class post or other next working day delivery service, commercial
courier, or fax or email.
17.6.2. A
notice or other communication shall be deemed to have been received:
if delivered personally, when left at the address referred to in
clause 14.6.1; 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 fax or email, one Business Day after transmission. 1 The
provisions of this clause shall not apply to the service of any
proceedings or other documents in any legal action.
17.7. 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.
17.8. 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.
17.9. Jurisdiction.
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.
17.10. Clerical
Errors. The
Company reserves the right to correct any typographical or clerical
errors made at any time by its employees.
18.1. a
reference to a statute or statutory provision is a reference to such
statute or provision as amended or re-enacted. A reference to a
statute or statutory provision includes any subordinate legislation
made under that statute or statutory provision, as amended or
reenacted.
18.2. any
phrase introduced by the terms including, include, in particular or
any similar expression shall be construed as illustrative and shall
not limit the sense of the words preceding those terms.
18.3. a
reference to writing or written includes faxes and e-mails.
