Terms & Conditions
A180 DARTS LTD
TERMS AND CONDITIONS FOR THE SALE OF GOODS Jan 2013
1. ACCEPTANCE AND AMENDMENT
1.1 These Terms and Conditions shall apply to all tenders, offers, quotations, acceptances, agreements and deliveries relating to the sale of goods by the Seller and the Buyer shall be deemed to assent thereto.
1.2 No other conditions or modifications of these conditions shall be binding on the Seller unless an authorised official of the Seller agrees thereto in writing making express reference as to the amendment of these Conditions and the Seller shall not be deemed to accept such other conditions nor to waive any of these Conditions by failing to object to provisions contained in any purchase order or other communication from the Buyer.
1.3 These Terms and Conditions contain the only conditions upon which the Supplier will deal with the Buyer, and they govern all Contracts to the exclusion of all other terms and conditions.
1.4 These Terms and Conditions constitute the entire agreement between the parties relating to the supply of the Goods and replace all previous negotiations, agreements, understandings and representations whether oral or in writing.
1.5 Acceptance of these Terms and Conditions will be shown by the Buyer sending to the Seller their express acceptance in writing. In the absence of written acceptance from the Buyer, acceptance of Goods delivered under this contract will be deemed as acceptance of this Contract.
1.6 We reserve the right to change the terms and conditions as listed without notice
1.7 The Term of this Contract will commence at the time of the Seller receiving Acceptance as in para 1.5 of this Contract and shall remain in effect indefinitely unless terminated under the provisions of this Contract.
2.DEFINITIONS AND INTERPRETATION
2.1 In these Conditions:ADR means Alternative Dispute Resolution - an alternative to court action - where parties choose an independent third-party to adjudicate on a dispute. The resulting decision is non binding.
Buyer means the person, firm or company placing an order with the Seller.
CEDR is the Centre for Effective Dispute Resolution
Contract means the contract for the sale and purchase of the Goods (in which these Terms and Conditions apply) together with any special terms agreed in writing between the Buyer and the Seller and attached to these terms and conditions
Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the party affected (including power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars)
Goods means the goods (including any instalment of the Goods or any parts for them) which the Seller is to supply pursuant to or in connection with the Buyer's order, this Contract and any Schedules attached to this Contract.
Intellectual Property Rights means all rights in Patents, registered and unregistered designs, copyright, Trade marks, Know-how and all other forms of Intellectual Property, wherever in the world enforceable.
Price(s) means the prices for the Goods
Schedule(s)means an additional document containing information additional to this Contract and may include Special Terms and Conditions.
Terms means these terms and conditions of sale.
2.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2.3 In the event of any conflict between a clause in these Terms and Conditions, any named Schedules to these Terms and Conditions and any Order placed by the Buyer, these Terms and Conditions prevail.
A180 Darts LTD
3.1 All descriptions, specifications, drawings, dimensions, capacities, prices and other data quoted or submitted by the Seller or included in any sales literature, quotation, price list, invoice or other document or information issued by the Seller are to be deemed approximate only (except where stated in writing to be exact) and subject thereto none of such items or any part thereof shall form part of the Contract (other than as approximations).
3.2 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acknowledgement of order, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3.3 The Seller reserves the right to make any changes in the specification of Goods which are required to conform with any applicable safety or other legal requirements or which do not materially affect their quality or performance.
4.1 Notwithstanding that a sample of the goods might have been shown to and inspected by the Buyer, the parties hereto accept that such sample was so shown and inspected for the sole purpose of enabling the Buyer to judge for himself the quality of the bulk, and so as not to constitute a sale by sample.
5.1 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of an authorised official of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
5.2 The Seller reserves the right to sell Goods to and deal with any other Buyer whatsoever.
6.1 Unless otherwise agreed in writing or stated in the Seller's quotation or acknowledgement of order the price payable by the Buyer for each delivery of Goods shall be the Seller's list price ruling at date of despatch.
6.2 Until an order has become binding on the Seller all prices are subject to change without prior notice.
6.3 After an order has become binding on the Seller, all prices will have VAT added at the appropriate rate and are subject to increase to reflect increases from time to time in list prices and any increases in costs to the Seller prior to delivery, any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
6.4 Without prejudice to the generality of the foregoing, any change in the applicable rate of VAT or of any other Government tax or levy shall be to the Buyers account
7.1 Unless otherwise agreed in writing or stated on the Seller's quotation or acknowledgement of the order, the net invoice shall become due for payment by the Buyer 30 days after the date of invoice or (if earlier) upon the occurrence of any circumstances whereunder, pursuant to the Contract or these Conditions, payment falls immediately due. Thetime of payment shall be the essence of the Contract.
7.2 The Seller reserves the right at any time before proceeding or proceeding further with an order to demand full or partial payment of monies due and payable under the Contract and under any other contract between the Seller and the Buyer.
7.3 If the Buyer defaults in any payment the Seller may in addition to exercising the right contained in 7.2 above suspend work, delay or withhold delivery or cancel the contract or suspend work, delay or withhold delivery under or cancel any other contract between the Seller and the Buyer and retain any progress payments or payments on account already received under the Contract or under any other contract between the Seller and the Buyer.
7.4 To the extent that the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or a receiver is appointed over any of the property or assets of theBuyer or the Buyer ceases or threatens to cease to carry on business the Seller shall be entitled to suspend work, delay or withhold delivery or cancel the contract 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.
7.5 The Seller reserves the right to charge interest at annual rate of two per cent above the base rate from time to time of Bank of Scotland PLC on all overdue moneys.
7.6 The Seller shall have a lien on all undelivered goods which the Buyer agrees to purchase from the Seller for all moneys due from the Buyer to the Seller under any contract between them and the Buyer shall have no right to set-off in respect of such moneys.
7.7 All rights and remedies afforded to the Seller in these Conditions for non-payment shall be in addition and without prejudice to all other rights and remedies available to the Seller under the Contract or at law.
7.8 Tooling or goods supplied by the Buyer for the production of the Buyers Goods by the Seller will not be released to the Buyer or any other party until all outstanding payments due or otherwise have been received and cleared by the Seller.
8.1 Time of delivery is not of the essence of the Contract and may not be made so by notice and any time or date specified by the Seller as the time at which or the date on which the Goods will be delivered is given and intended as an estimate only and the Seller shall not be liable for any loss, damage or expense howsoever arising from delay in delivery.
8.2 The Seller reserves the right to make delivery by instalments, unless otherwise expressly agreed in writing. The period during which the delivery by instalments may be made and the quantity of Goods delivered in each instalment shall be in the Seller 's discretion.
8.3 Where Goods are delivered in instalments, each delivery shall constitute a separate contract (in which these Conditions apply (mutatis mutandis)) and failure by the Seller to deliver any one or more of the instalments or any claim by the Buyer in respect of any one or more instalments shall not entitle the buyer to treat the Contract as repudiated.
8.4 Each order for Goods given by the Buyer to the Seller will be deemed to be an offer by the Buyer to purchase Goods from the Seller subject to these Terms.
8.5 Where a Contract provides for delivery by instalments at unspecified times over a period the Buyer shall order all Goods within and accept all deliveries thereof within 3 months from the date of the first delivery or availability date, whichever is the sooner. If the Buyer fails to so order the Goods or accept all such deliveries within such time limit the Seller shall be entitled to invoice the full balance of the price of the Goods remaining to be ordered and delivered, the cost of which shall immediately become due.
8.6 Where a Contract provides for delivery by instalments at specified times or intervals the Buyer shall accept each delivery at the time specified. If the Buyer refuses or is unable to accept any such delivery the Seller may terminate all future deliveries and treat the Contract as repudiated and claim damages from the Buyer for breach of Contract.
8.7 Delivery will be made in such packs as may be appropriate for delivery of the Goods. Subject thereto delivery of more or less than the quality of the Goods due for delivery or the inclusion therewith of goods of a different description not included in the Contract shall not entitle the Buyer to reject the Goods delivered.
8.8 Delivered quantities will be subject to a+/-10% variation to order quantity.
8.9 If the Buyer fails to take delivery of Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller (including its right to payment) the Seller may: -
(i) store the Goods until actual delivery and charge the buyer for the reasonable costs (including insurance) of storage; and
(ii) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for any shortfall below the price under the Contract and the Buyer shall indemnify the Seller in full against all losses, damages, charges and expenses incurred by the Seller as a result of the buyer's said failure to take delivery or give adequate delivery instructions to the extent that the Sellers said losses, damages, charges and expenses are not covered by any payments made or monies obtained under (i) or (ii) above.
9. FORCE MAJURE
9.1 Notwithstanding any express agreement as to the date of delivery, If delivery is delayed by strikes, lock-outs, fire, accidents, defective materials, delays in the receipt of raw materials or bought-in-goods or components or any other cause beyond the reasonable control of the seller a reasonable extension of time will be granted and the buyer shall pay such reasonable extra charges as shall have been occasioned by the delay. If the delay persists for such time as the seller considers unreasonable, he may, without liability on his part, terminate the contract.
9.2 During any of the foregoing events described in 9.1,the Seller's obligations shall be suspended until such events cease or until the Seller cancels the delivery (as the case may be) and the Seller shall not be required to obtain elsewhere in the market goods with which to replace or permit it to produce Goods delivery of which has been postponed or cancelled as a result of any of the said events. In the event of cancellation, the Seller shall be paid pro rata for Goods delivered or work done to the date of cancellation.
10. BUYERS OBLIGATION AND CLAIMS ON DELIVERY
10.1 The Buyer will: -
(i) examine Goods carefully within 5 days of taking delivery;
(ii) notify the Seller (and any carrier for the Seller) in writing within 7 days of taking delivery of any error in quantity or description of the Goods delivered or that they were mixed with others not included in the contract or of any damage to goods revealed by such examination or which ought reasonably to have been revealed by such examination and not caused since delivery was taken.
10.2 Failure to make any notification in accordance with paragraph (ii) of Condition 10.1 which examination under (i) above should have enabled the Buyer to make shall constitute waiver by the Buyer of all claims based on or relating to facts which such examination should have revealed.
11.1 Risk of damage to or loss of the Goods shall pass to the Buyer: -
(i) in the case of Goods to be delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection;or
(ii) in the case of Goods to be delivered otherwise than at the Seller's premises, at the time of delivery (except where goods are sold Free On Board - FOB) or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods. Delivery to a carrier or to any person, firm or company on the Buyer's behalf shall constitute delivery to the Buyer.
11.2 Where Goods are sold F O B all risk of damage or loss in transit shall pass to the Buyer when the Goods are placed on board ship, and the Seller shall be under no obligation to give the Buyer the Notice specified in Section 32(3) Sale of goods Act 1979.
12. PROPERTY AND TITLE TO GOODS
12.1 Property in the Goods shall remain with the Seller until payment in full has been received by the Seller:
12.1.1 for the Goods;
12.1.2 for all other goods ordered by or delivered to the Buyer; and
12.1.3 for any monies due from the Buyer to the Seller on any account whatsoever.
12.2 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee and shall keep the Goods separate and unmixed from those of the Buyer and third parties, properly stored, protected, insured and identified as the Seller's property. Until such time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business. The Buyer shall account to the Seller for the proceeds of sale of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and in the case of tangible proceeds, properly stored, protected and insured.
12.3 If the Buyer: -
12.3.1 has any distress or execution levied against the Goods or any of its assets; or
12.3.2 has a bankruptcy order made against it; or
12.3.3 goes into liquidation whether voluntary or compulsory (except solely for the purposes of a reorganisation); or
12.3.4 makes an arrangement with its creditors; or
12.3.5 has an administrator or administrative receiver appointed over any of its assets; or
12.3.6 pledges or in any way charges by way of security for any indebtedness any of the Goods which remain the property of the Seller; or 12.3.7 receives a written demand from the Seller to pay overdue sums owed to the Seller; then the Buyer's consent from the Seller to do the acts referred to in Condition 12.2 shall determine and be deemed to have determined forthwith and the Buyer shall not thereafter sell or use the Goods or any other goods belonging to the Seller, save with the consent in writing of the Seller, until the Seller has been paid in full in accordance with Condition 12.1
12.4 The Buyer shall ensure that in the event of any re-sale of the Goods in accordance with Condition 12.2 the contract of sale between the Buyer and its purchaser shall contain a retention of ownership clause which will have the same effect for the Buyer as Condition 12.1 has for the Seller.
12.5 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so, forthwith to enter upon any premises of the Buyer or any third party where the Goods are store and repossess the Goods.
12.6 Where the property in the Goods has not passed the Seller may nevertheless maintain an action against the Buyer for the purchase price and all other monies owing to the Seller in relation to the Goods notwithstanding Section 49 of the Sale of Goods Act 1979.
13. WARRANTIES AND LIABILITY
13.1 Subject to the terms and conditions set out in this Condition 13, the Seller warrants to the Buyer that the Goods will correspond with their specification at the time of delivery.
13.2 The warranty in Condition 13.1 above is given by the Seller subject to the following conditions: (i) the Seller shall be under no liability in respect of any defect in the quality or condition of the Goods or their failure to meet specification unless the Buyer's claim is notified to the Seller within a reasonable time after the date upon which such defect or failure was or should reasonably have been discovered and the allegedly defective Goods are returned at the risk and expense of the Buyer to the Seller forthwith;
(ii) the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing or specification supplied by the Buyer;
(iii) the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, misuse or alteration or repair of the Goods without the Seller's approval;
(iv) the Seller shall be under no liability under such warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
(v) such warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
13.3 No liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of this contract where such term relates in any way to:
(I) the correspondence of the Goods with any description; or
(ii) the quality of the Goods; or
(iii) the fitness of the goods for any purpose(s) whatsoever
13.4 Where any valid claim in respect of any Goods or part(s) thereof based on any defect in the quality or condition of the Goods or part(s) thereof or their failure to meet specification or perform is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to repair or replace the Goods (or the part(s) in question) free of charge or, at the Seller's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.
13.5 Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or re-sale by the Buyer, except as expressly provided in these Conditions.
14. TRADE MARKS, PATENTS AND OTHER INDUSTRIAL RIGHTS
14.1 If any claim is made against the Buyer alleging that Goods infringe any patent rights, registered designs, copyright or other industrial property rights of another then: -
(i) the Buyer shall forthwith notify the Seller with full particulars; and
(ii) the Seller or its suppliers or licensors (as case may be) shall be at liberty at their expense to conduct all negotiations and / or litigation in respect thereof and (if necessary) in the name of the Buyer; and
(iii) except pursuant to a final reward, the Buyer shall not pay or accept any such claim or compromise any proceedings without the consent of the Seller (which shall not be unreasonably withheld or delayed) and if as a result of such negotiations or litigation the Buyer shall be unable to use the Goods substantially for purpose for which they were bought the Seller shall take them back and refund the price thereof and such refund shall be in full satisfaction of all claims by the Buyer against the Seller.
14.2 The Buyer shall indemnify the Seller against all actions costs (including cost of defending legal proceedings) claims proceedings and demands in respect of any infringement or alleged infringement by the Seller of patent rights, registered design, copyright design rights or other industrial rights attributable to the Seller complying with any special instructions from or requirements of the Buyer relating to the Goods.
14.3 All Intellectual Property Rights sued in or produced from or arising as a result of the performance of this contract shall, as far as not already vested, become the absolute property of the Seller and the Buyer will do all that is reasonably necessary to ensure that such rights vest in us (as, without prejudice to the generality of the foregoing) by the execution of appropriate instruments, or the making of agreements with third parties.
15. BUYER SUPPLIED PRODUCT
15.1 Any goods, equipment or tooling supplied to the seller by the buyer for production of the buyers goods will not be insured for any loss or damage what so ever by
16.1 Any notice given hereunder must be in writing and may be effected by personal delivery, by facsimile, by electronic means such as email or by prepaid first class post and (subject, in each case, to proof that such notice was properly addressed and despatched) shall be deemed to have been duly given or made if delivered by hand upon delivery at the address of the relevant party, if transmitted by facsimile at the time of transmission (provided a confirmatory notice is sent by prepaid first class post) and if effected by post 48 hours after the date of posting.
17. NO ASSIGNMENT
17.1 The Contract shall be personal to the Buyer and shall not, nor shall any rights under it, be assigned by the Buyer without the written consent of the Seller.
18. NO WAIVER
18.1 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
19. RIGHTS OF THIRD PARTIES ACT (1999)
19.1 Nothing in this contract confers or purports to confer on any third party any benefit or any right to enforce any term of this contract, pursuant to the Contract (Rights of Third Parties) Act 1999.
20. RELATIONSHIP OF PARTIES
20.1Nothing in this agreement shall be construed as establishing or implying any partnership or joint venture between the parties, and nothing in this agreement shall be deemed to constitute either of the parties as the agent of the other or authorise either party:
(a) to incur any expense on behalf of the other party;
(b) to enter into any engagement or make any representation or warranty on behalf of the other party;
(c) to pledge the credit of, or otherwise bind or oblige the other party;
(d) to commit the other party in any way whatsoever, without in each case obtaining the other party's prior written consent
20.1.1 the Buyer defaults in or commits any breach of any of its obligations to the Seller (under a Contract or otherwise), or ceases or threatens to cease to carry on its business or a substantial part of it;
21.1.2 any distress or execution is levied on any of the Buyer's property;
21.1.3 in respect of the Buyer (being an individual) an application is made for an individual voluntary arrangement, or the Buyer otherwise makes or offers to make any arrangement or composition with its creditors, or a bankruptcy petition is presented;
21.1.4 if in respect of the Buyer (being a company) a proposal is made for a company voluntary arrangement, or any resolution or petition to wind up the Buyer is passed or presented, or a receiver or administrative receiver is appointed over the Buyer's undertaking, property or assets or any material part of them, or a petition is presented to the court for an administration order in respect of the Buyer;
21.1.5 the Buyer takes or suffers any similar or analogous action due to debt; or
21.1.6 if on more than one occasion any cheque from the Buyer in favour of the Seller is not honoured on first presentation the Seller may (without prejudice to any of its other rights) suspend further deliveries to the Buyer and/or (by notice in writing to the Buyer) terminate any Contract.
21.1.7 Upon termination of any Contracts under this Condition 19, any indebtedness of the Buyer to the Seller shall become due and payable immediately and the Company shall be relieved of any further obligation to supply any Goods to the Buyer under such Contract
21.2 Neither party shall have any right to claim for any loss or damage occasioned by such termination, which shall be without prejudice to any accrued rights and remedies of either party
21.3 Either party shall be entitled to immediately terminate the Contract on giving written notice to the other if:
21.3.1 That other party commits any material breach of these conditions and, in the case of such a breach which is capable of remedy, fails to remedy the same within 21 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied (for the avoidance of doubt any late payment or failure to pay by the Buyer any sums due shall be a material breach)
21.4 Neither party shall have any right to claim for any loss or damage occasioned by such termination, which shall be without prejudice to any accrued rights and remedies of either party.
22. SURVIVAL OF CLAUSES FOLLOWING TERMINATION OF CONTRACT
22.1 In the event of this Contract being Terminated, for whatever reason, the following clauses will survive any such Termination of Contract, these being:
2. DEFINITIONS AND INTERPRETATION
13. WARRANTIES AND LIABILITY
14.TRADE MARKS, PATENTS AND OTHER INDUSTRIAL RIGHTS
23. DISPUTE RESOLUTION.
24. GOVERNING LAW
23. DISPUTE RESOLUTION
23.1 If any dispute arises in connection with this agreement, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (an 'ADR notice') to the other party[ies] to the dispute requesting a mediation. A copy of the request should be sent to CEDR. The commencement of a mediation will not prevent the parties commencing or continuing court proceedings / an arbitration.
24. GOVERNING LAW
24.1The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any term of the Contract will be governed by English law. The English courts will have exclusive jurisdiction to settle any dispute which may arise out of, or in connection with the Contact. The parties agree to submit to that jurisdiction.
25.1 If any provision of the Contract (or 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 the Contract (or of these Conditions) and the remainder of the provision in question shall not be affected thereby