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Contracts
1.1 These conditions shall be incorporated in all contracts for the supply of goods by the Company to the exclusion of any terms or conditions referred to in the order (or, as the case may be, where the Company acknowledges an order given by the customer on terms other than those stated in these conditions then such acknowledgement shall be treated as an offer to supply such goods) in accordance with these conditions. Acceptance of the delivery of the goods by or on behalf of the customer shall in any event be conclusive evidence of the customer's acceptance of these conditions.
1.2 Each contract supersedes all previous oral or written communications between the Company and the customer not expressly referred to in any order acknowledgement given by the Company and no amendment of any contract shall bind the Company unless confirmed by it in writing. The placing by the customer of any order shall constitute an offer by the customer. No contract shall come into existence unless the Company accepts the customer's order in writing.
1.3 The Company reserves the right to set minimum annual turnover thresholds that may vary by country.
1.4 Any quotation shall remain open for the period stipulated by the Company on or in relation to the relevant quotation. Quotations are not binding and shall not be open for acceptance by the customer. Where goods are quoted for supply from stock they are quoted subject to being unsold when the customer's orders is accepted.
Prices and Payment
2.1 Subject to prior written agreement to the contrary, the Company shall be entitled to invoice the customer for the price of the goods on or at any time after the Company has notified the customer that the goods are ready for collection or the Company has tendered delivery of the goods.
2.2 The Company's prices exclude VAT and unless otherwise stated are those in its price lists in force at the date of despatch of the goods exclusive of carriage and insurance.
The Company also reserves the right to adjust any prices quoted by it for any costs incurred by the Company after the date of the customer's order as a result of any alterations in the specifications, quantities or times of delivery of any goods or suspension of work requested by the customer or any delay in the supply by or on behalf of the customer of any instructions or other matter (including but not limited to 'free issue items') of whatever kind or any inaccuracy, insufficiency or defect therein or their unsuitability for the Company's manufacturing processes.
2.3 All amounts due to the Company unless otherwise stated shall be payable in pounds sterling not later than the twentieth day of the month following that of the date of the Company's invoice without any set-off or other deductions whatsoever, notwithstanding that the delivery may not have taken place and that property in the goods may not have passed to the customer.
2.4 Without prejudice to any other rights of the Company, if the invoice is not paid in full by the due date interest shall be payable on any over due amount from the date on which payment was due to that on which it is made (whether before or after judgement) on a daily basis of the rate of 2 per cent per month together with any charges and expenses (including legal fees and administration costs) incurred by the Company in collecting payment.
2.5 Without prejudice to any other of its rights, and notwithstanding any other agreement or arrangement with the customer, the Company shall be entitled by giving written notice to the customer at any time to require the customer to tender the price of the goods in a manner satisfactory to the Company and the Company shall be entitled to refrain from delivering the goods until the price has been so tendered.
2.6 If the customer fails to make any payment when and as due or there occurs any of the other events referred to in condition 10.1 or the customer exceeds any financial limit upon the customer's account (if any) from time to time agreed in writing by the Company then in any such event the price of all such goods as have been delivered to or manufactured for any order from the customer shall forthwith thereupon become immediately due and payable.
2.7 The Company may appropriate any payment made by the customer to such of the goods (or goods supplied under any other contract between the Company and the customer) as the Company may think fit (notwithstanding any purported appropriation by the customer).
Delivery
3.1 Goods shall be delivered and risk in them shall pass to the customer when they are made available at the Company's premises or other delivery point stated in any order acknowledgement given by the Company and where goods are intended for export any trade terms referred to in the Company's order acknowledgement shall, to the extent consistent with these conditions, be as defined in the edition of 'Incoterms' then current and the goods shall be delivered and risk in them shall pass to the customer as therein provided.
3.2 Any time quoted by the Company for delivery is an estimate only and time shall not be of the essence. Times quoted for delivery are subject to the availability of goods for the contract (and where goods are available only in limited quantities their allocation to particular customers shall be at the sole discretion of the Company) and the supply of all instructions or other matter (including but not limited to 'free issue' items) of whatever kind required from the customer. The Company shall endeavour to meet such delivery times but shall not be liable for any loss, damage or expenses of whatever kind arising from any delay or failure from whatever cause nor shall such failure or delay entitle the customer to refuse to accept any delivery or repudiate the contract. The Company reserves the right to deliver all or any of the goods in advance of the estimated date. The Company reserves the right to make part deliveries and each delivery shall constitute a separate contract to which these terms and conditions shall apply. Failure by the Company to deliver any one or more of the part deliveries or any claim by the customer in respect of any one or more part deliveries shall not entitle the customer to treat the Contract as a whole as repudiated.
3.3 the customer fails to take delivery of any goods on the due date or provide adequate delivery instructions the Company may (without prejudice to its other rights and remedies) at its option store the goods at the risk of the customer who shall pay all storage, transportation, handling or other charges incurred by the Company as a result of such failure and the Company shall be entitled to payment as though delivery had taken place; and/or sell the goods at any time and after deducting all costs and expenses account to the customer for any excess over the price already paid under the contract or charge the customer for any shortfall between the contract price and such costs and expenses.
3.4 The Company may determine the form of transport of any goods the price of which includes carriage and charge extra for any special arrangements requested by the customer.
3.5 The Company may deliver the goods by instalments and each instalment shall be deemed the subject of a separate contract. No failure by the Company in any one or more instalments shall entitle the customer to repudiate any contract for goods previously delivered or to refuse to accept any undelivered goods.
3.6 For non-standard items, including Crested Ware and those items not in the Company's trade price list, the Company may deliver up to 10% more than the quantity of any goods ordered and invoice the customer at the contract rate for the goods actually delivered and the customer shall not refuse to accept delivery by reason of any such increase in quantity.
3.7 Where any items (including but not limited to artwork and lithographs) of whatever kind required for the contract are invoiced by the supplier thereof to the customer these shall be considered 'free issue' items and the Company shall have no liability of whatsoever kind in contract, tort (including negligence) or otherwise howsoever in connection with any such items and the customer shall be solely responsible for them.
3.8 Packages are of standard sizes and not made up until an economic quantity of goods is available for despatch. The customer must give clear written instructions of any special arrangements (including the preparation of small packages) for which the Company reserves the right to charge extra.
Title
4.1 Notwithstanding the earlier passing of risk in accordance with these conditions, title in the goods shall remain with the Company and not pass to the customer (who shall, nevertheless, subject to the conditions stated below, be entitled to resell them as principal only, in the ordinary course of business) until the Company has received in cash or cleared funds payment in full of the price of the goods and of all other debts forgoods or services owed to it by the customer on any account.
4.2 Until property in and title to the goods passes to the customer
4.2.1 the customer shall keep the goods properly stored, protected and insured and separate from all or any other goods whether belonging to the Company the customer or any third party and without prejudice to any other remedy the Company shall be entitled to maintain an action for the price of the goods notwithstanding that property in and title to such goods has not passed to the customer;
4.2.2 the Company shall be entitled at any time forthwith to revoke the customer's power to deal with the goods; and it shall automatically cease if any of the events under condition 10.1 occur;
4.2.3 the customer shall not make any modification to the goods or their packaging or alter remove or tamper with any marks, numbers or other means of identification used on or in relation to the goods.
4.3 Upon termination of the customer's power to deal with the goods, the customer shall place the goods at the disposal of the Company and the Company and it servants and agents are hereby irrevocably authorised without the need for any consent of any third party but using only such force as may be necessary, to enter upon any premises of the customer or any third party for the purpose of removing the goods.
4.4 If any of the provisions of this condition shall be invalid or unenforceable such invalidity or unenforceability shall not affect the remaining provisions.
4.5 The Company transfers to the customer only such title and rights of use as the Company has in any goods and in the case of 'free issue' items or other material provided by any third party shall transfer only such title and rights as that party had and has transferred to the Company
Warranty
Within 14 days from the date of invoice or despatch of the relevant goods, whichever is the later (or if a whole consignment is missing, within 10 days of the date of the Company's invoice or the date on which the goods on ordinary course have reached their destination, whichever is the later) and by the customer giving written notice to any carrier (whether appointed by the Company or the customer) in accordance with the carrier's claims procedures;or
5.1 The Company will in its discretion and at its option within a reasonable period replace at the original point of delivery, or allow the customer credit for the invoice value (or proportionate part thereof) of any goods which the customer proves were at the time of delivery missing, lost, damaged, not in accordance with their contract description or defective in materials or workmanship or, in the case of goods alleged to be defective which are not of the Company's manufacture and in lieu of any liability on the part of the Company therefore, assign to the customer (so far as the Company is able to do so) any warranties given by the manufacturer of the goods.
5.2 Claims by the customer will be considered only if:
5.2.1 any discrepancy is promptly reported to the Company, and confirmed
(a) In the case of lost, damaged or short delivered goods by the customer giving written notice of the claim to the Export Sales Department, in each case, within 14 days from the date of invoice or despatch of the relevant goods, whichever is the later (or if a whole consignment is missing, within 10 days of the date of the Company's invoice or the date on which the goods in ordinary course have reached their destination, whichever is the later) and by the customer giving written notice to any carrier (whether appointed by the Company or the customer) in accordance with the carrier's claims procedures;
or
(b) In the case of goods not in accordance with their description or defective goods by the customer giving written notice to the Company within 45 days from the date of the receipt of the goods. The customer is advised to inspect the goods promptly on receipt.
5.2.2 the customer has afforded the Company reasonable opportunity and facilities for the investigation of the claim and complied with any request by the Company for the return of any goods for examination, properly packed, cost of carriage and insurance to be borne by the customer but reimbursed if the claim is accepted:
5.2.3 the customer has paid the full amount of all invoices due prior to the date of the claim.
5.3 The Company shall have no liability for any alleged discrepancy or defect in any goods which:
5.3.1 arises from accident, handling, improper storage or misuse of the goods after delivery;
5.3.2 appears after the claims period applicable to the original goods has expired;
5.3.3 results from any inaccurate or incomplete information or details supplied by the customer or from any defect or discrepancy in any 'free issue' items supplied by or on behalf of the customer.
Extent of Liability
6.1 Nothing in this condition shall operate so as:
6.1.1 to exclude the Company's non-excludable liability in respect of death or personal injury caused by the negligence of the Company its servants or agents;
6.1.2 to affect the statutory rights of the customer where goods are sold to a customer dealing as a consumer within the meaning of Unfair Contract Terms Act; or
6.1.3 to exclude the application of Section 12 of the Sale of Goods Act 1979;
6.1.4 to exclude liability for fraudulent misrepresentation.
6.2 The Company shall not be liable to the customer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss or damage which the customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the contract by the Company its servants or agents, in a sum which is greater that the relevant contract price.
6.3 The Company shall not be liable to the customer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss of profits and/or loss of production or any indirect or consequential (including economic) loss of any kind which the customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the contract by the Company, its servants or agents.
6.4 Where the Company is liable under these conditions in respect of some only of any goods forming the subject matter of any contract the contract shall remain in full force and effect in respect of the remaining goods and the customer shall not reject or refuse to pay for them.
Design Modifications
7.1 The Company reserves the right at any time without notice to change or modify the particulars of any specification or description of any goods and to discontinue manufacture and shall not be obliged to offer or except in accordance with any written order acknowledgement issued by it to make available any or any particular goods to any person. No contract shall constitute a sale by sample unless specifically agreed in writing.
7.2 Any description or particulars contained in the Company's leaflets, price lists or other material are intended merely to present a general idea of the goods described in them and shall not form part of any contract.
7.3 The Company shall have no liability under these conditions in respect of any advice, opinion or information furnished by the Company, its employees or agents in connection with any 'free issue' items or in connection with any goods manufactured or to be manufactured by the Company, unless given in writing by a person expressly authorised by the Company for that purpose in response to a written request by the customer.
Customer Infringements
8.1 If any claim is made against the customer that the goods infringe or that their use or resale infringes the patent, copyright, database right, design right, registered design, trade mark or other industrial or intellectual property rights of any other person or any claim is made in respect of passing off or unauthorised use of all secret or confidential commercial, financial and technical information, know how, trade secrets, inventions, computer software and other information whatsoever and in whatever form or medium and whether disclosed orally or in writing, together with all reproductions in whatsoever form or medium and any part or parts of it ("Confidential Information") in relation to the goods and/or their use or resale the customer shall forthwith notify the Company in writing and the Company shall be given full control of any proceedings or negotiations in connection with any such claim. The customer shall give the Company all reasonable assistance or the purposes of any such proceedings or negotiations and except pursuant to a final award, the customer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Company (which shall not be unreasonably withheld). The customer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Company may have in relation to such infringement.
8.2 If the goods are to be manufactured or any process is to be applied to the goods by the Company in accordance with a specification submitted by the customer, the customer shall (without prejudice to the other rights and remedies of the Company) indemnify the Company in full against all loss, costs, damages, charges, expenses and other liabilities awarded against or incurred by the Company as a result of or in connection with:
8.2.1 any claim for infringement of any patent, copyright, database right, design right, registered design, trademark or other industrial or intellectual property rights of any other person and/or for passing off and/or unauthorised use of Confidential Information which results from the Company's use of the customer's specifications;
8.2.2 any other liability of any kind to any third party including without limitation for defective goods, personal injury or death to the extent that it arises from the specification.
Force Majeure
9. The Company shall not be liable for any delay or other failure to perform the whole or any part of the contract resulting from any case whatsoever beyond the Company's control existing at the date of any order acknowledgement given by it or arising thereafter including but not limited to fire, explosion, breakdown or failure of plant or machinery, lack or failure of transportation facilities, supply of labour, material, power or supplies, strike, lockout or labour dispute (whether or not at the Company's works), illness, epidemic, flood, drought, war, civil commotion, or restriction of any authority or governmental agency (including restrictions or delays in the issue of export of other licences).
General
10.1 If the customer is the subject of an event such as a notice being issued to propose a resolution for winding up or dissolution, or such a resolution being passed; a petition for winding up or an administration or bankruptcy order being presented, or such an order being made; any steps being taken with a view to a voluntary arrangement or other assignment, composition or arrangement with all or any creditors or an moratorium, readjustment, rescheduling, forgiveness or deferral of all or any indebtedness; suspension of payments to all or any creditorsand/or ceasing business; an encumbrancer taking possession of all or any assets of the customer; an administrator or receiver being appointed over the Customer or all or any of its assets; any action anywhere similar or analogous to any of the foregoing; or the Company has reasonable grounds for believing that any of the foregoing is imminent, then, in any such event, the Company shall, without prejudice to any other remedy, be entitled, at its discretion, by giving the customer written notice at any time, to forthwith suspend its performance of or terminate such contract without liability to the customer. For the avoidance of doubt if any of the foregoing occur in relation to a partner in the Customer it shall be deemed to occur in relation to the Customer.
10.2 The rights of the Company shall be prejudiced or restricted by any indulgence or forbearance extended to the customer and no such indulgence or forbearance by the Company in respect of any breach by the customer shall operate as a waiver in respect of the same or any subsequent breach.
10.3 All items including patterns, drawings, designs or other data (whether or not patented or patentable) prepared or used by the Company for any contract and all rights (including copyright and any design rights) therein shall be and remain the Company's property. The customer shall not copy or reproduce or allow others to copy or reproduce such items or any goods or parts supplied by the Company.
10.4 The acceptance of any cancellation requested by the customer shall be at the Company's discretion and take effect only when written confirmation of such acceptance has been given by the Company which reserves the right to charge for any costs or expenses which it incurs in connection with any such cancellation.
10.5 Any goods replaced by the Company shall become the Company's property and shall not be sold or, except in accordance with the Company's written instructions, disposed of by the customer.
10.6 The Company may sub-contract all or any of its obligations at its discretion. The contract is personal to the customer and the customer shall not assign, transfer, sub-contract or charge its rights and responsibilities under the contract or any of them without the Company's prior written consent.
10.7 Any 'free issue' or other items of whatever kind including but not limited to artwork or lithographs provided by the customer for any contract shall be held by the Company at the customer's sole risk and the Company shall have no liability in contract, tort (including negligence) or otherwise howsoever in respect thereof.
10.8 The Company shall have a lien on any undelivered goods in the Company's possession for all sums due at any time from the customer on any account and shall be entitled to keep possession of or at its option sell or dispose of the same as agent for and at the expense of the customer and apply any proceeds in and towards the payment of such sums on 28 days written notice to the customer.
10.9 It shall be the responsibility of the customer to ensure that all requirements applicable to the contract, whether statutory, regulatory, municipal and/or otherwise howsoever, (including without limitation any relating to the importation or use of the goods in the country of destination and for the payment of duties thereon) are duly complied with. It shall be a condition precedent to the performance by the Company of its obligations under the contract that all necessary licences, permits and consents shall have been obtained by the customer.
10.10 Without prejudice to the generality of condition 10.9 the obtaining of any relevant exchange control consents shall be a condition precedent to the performance by the Company of any of its obligations under the contract.
10.11 The provisions of the conditions are severable and distinct from one another, and, if at any time any of the provisions is or becomes invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions shall not in any way be affected or impaired.
10.12 The conditions and the contract shall not constitute and shall not be deemed to constitute a partnership between the Company and the customer and the customer shall not act nor purport to act as agent for the Company but solely as an independent contractor
10.13 For the avoidance of doubt nothing in these conditions shall confer on any third party any benefit or the right to enforce any provisions of these conditions.
Laws, Jurisdiction and Construction
11.1 The Contract shall be governed in accordance with the laws of England and Wales. Any dispute arising under this Contract shall be subject to the exclusive jurisdiction of the English courts and the parties waive any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum.
11.2 The headings of conditions are for convenience of reference only and shall not affect their interpretation.
Notices
12. All notices under this contract shall be in writing and may be served by post or facsimile transmission addressed to the other party at the address given in this contract or at such other address as a party shall from time to time by notice in writing give to the other party for the purpose of service of notices under this contract and every such notice shall be deemed to have been served by post at the expiration of 2 working days (or 7 working days in the case of customers outside the United Kingdom) after despatch of the same or if sent by facsimile transmission at ten hours local time on the next normal Business Day of the recipient following despatch and in proving service it shall be sufficient to show in the case of a letter that the same was duly addressed prepaid and posted in the manner provided and in the case of a facsimile transmission a transmission report that it was transmitted to the correct telephone number. Saturdays, Sundays and Bank Holidays shall not in any event be treated as days on which service is effected, and service shall be deemed to take place on the next normal Business Day of the recipient.
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