Terms & Conditions
Please Note 2 Sets of T&Cs are show below, the first set are our Terms & Conditions of Sale for Website Orders, then shown after the **** Section are Dispak's Standard Terms & Conditions for all other types of orders.
WEBSITE TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS BY DISPAK LIMITED
(Company Number: 02050242)
Your attention is particularly drawn to the provisions of clause 10 (Our liability).
1.1 Company details. Dispak Limited (company number 02050242) (“we” and “us”), is a company registered in England and Wales and our registered office is at Lysander Road, Bowerhill Estate, Melksham, Wiltshire, SN12 6SP. Our main trading address is Lysander Road, Bowerhill Estate, Melksham, Wiltshire, SN12 6SP. Our VAT number is 501 8173 77. We operate the website www.dispak.co.uk.
1.2 Contacting us. To contact us telephone our customer service team at 01225 705252 or email sales@dispak.co.uk. How to give us formal notice of any matter under the Contract is set out in clause 14.2.
2.1 Our contract. These terms and conditions (“Terms”) apply to the order by you and supply of goods by us to you (“Contract”). They apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 Entire agreement. The Contract is the entire agreement between us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
2.3 Language. These Terms and the Contract are made only in the English language.
2.4 Your copy. You should print a copy of these Terms or save them to your computer for future reference.
3 Placing an order and its acceptance
3.1 Placing your order. Please follow the onscreen prompts to place an order. Each order is an offer by you to buy the goods specified in the order (“Goods”) subject to these Terms.
3.2 Correcting input errors. Our order process allows you to check and amend any errors before submitting your order to us. Please check the order carefully before confirming it. You are responsible for ensuring that your order and any specification submitted by you is complete and accurate.
3.3 Acknowledging receipt of your order. After you place an order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 3.4.
3.4 Accepting your order. Our acceptance of your order takes place when we send the email to you to accept it, at which point the Contract between you and us will come into existence.
3.5 If we cannot accept your order. If we are unable to supply you with the Goods for any reason, we will inform you of this by email and we will not process your order. If you have already paid for the Goods, we will refund you the full amount including any delivery costs charged as soon as possible.
4.1 The images of the Goods on our site are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that your computer's display of the colours accurately reflect the colour of the Goods. The colour of your Goods may vary slightly from those images.
4.2 Although we have made every effort to be as accurate as possible, all sizes, weights, capacities, dimensions and measurements indicated on our site have a 2% tolerance.
4.3 The packaging of your Goods may vary from that shown on images on our site.
5 Delivery, transfer of risk and title
5.1 We will contact you with an estimated delivery date, which will be within 10 days after the date on which we email you to confirm our acceptance of your order. Occasionally our delivery to you may be affected by an Event Outside Our Control. See clause 13 (Events outside our control) for our responsibilities when this happens.
5.2 Delivery is complete once the Goods have been unloaded at the address for delivery set out in your order or collected by you or a carrier organised by you to collect them from us and the Goods will be at your risk from that time.
5.3 You own the Goods once we have received payment in full, including of all applicable delivery charges. Until such time as title to the Goods has passed to the you, you shall:
5.3.1 store the Goods separately from all other goods held by you so that they remain readily identifiable as the our property;
5.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
5.3.4 notify us immediately if you becomes subject to any of the events listed in clause 11.1.2 to clause 11.1.5; and
5.3.5 give us such information relating to the Goods as we may require from time to time.
5.4 Subject to clause 5.5, you may resell or use the Goods in the ordinary course of its business (but not otherwise) before we receive payment for the Goods. However, if you resell the Goods before that time:
5.4.1 you do so as principal and not as our agent; and
5.4.2 title to the Goods shall pass from us to you immediately before the time at which resale by you occurs.
5.5 If before title to the Goods passes to you, you become subject to any of the events listed in clause 12.1.2 to clause 12.1.5 (inclusive), then, without limiting any other right or remedy the Supplier may have:
5.5.1 your right to resell the Goods or use them in the ordinary course of your business ceases immediately; and
5.5.2 we may at any time:
(a) require you to deliver up all Goods in your possession that have not been resold, or irrevocably incorporated into another product; and
(b) if you fail to do so promptly, enter any of your premises or of any third party where the Goods are stored in order to recover them.
5.6 If we fail to deliver the Goods, our liability is limited to the cost of obtaining replacement goods of a similar description and quality in the cheapest market available, less the price of the Goods. However, we will not be liable to the extent that any failure to deliver was caused by an Event Outside Our Control, or because you failed to provide adequate delivery instructions or any other instructions that are relevant to the supply of goods.
5.7 If you fail to take delivery within 10 days after the day on which we notified you that the Goods were ready for delivery, we may resell part of, or all the Goods.
6.1 Unfortunately, we do not deliver to addresses outside the UK.
6.2 You may place an order for Goods from outside the UK, but this order must be for delivery to an address in the UK.
7 Price of goods and delivery charges
7.1 The prices of the Goods will be as quoted on our site at the time you submit your order. We take all reasonable care to ensure that the prices of Goods are correct at the time when the relevant information was entered onto the system. However, please see clause 7.5 for what happens if we discover an error in the price of Goods you ordered.
7.2 Prices for our Goods may change from time to time, but changes will not affect any order you have already placed.
7.3 The price of Goods excludes VAT (where applicable) at the applicable current rate chargeable in the UK for the time being. However, if the rate of VAT changes between the date of your order and the date of delivery, we will adjust the VAT you pay, unless you have already paid for the Goods in full before the change in VAT takes effect.
7.4 The price of the Goods does not include delivery charges or any additional costs imposed on the Supplier, including but not limited to freight forwarding costs. Our delivery charges and any other additional charges are as advised to you during the check-out process, before you confirm your order.
7.5 We sell a large number of Goods through our site. It is always possible that, despite our reasonable efforts, some of the Goods on our site may be incorrectly priced. If we discover an error in the price of the Goods you have ordered we will contact you to inform you of this error and we will give you the option of continuing to purchase the Goods at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. If we mistakenly accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the Goods and refund you any sums you have paid.
8.1 You can pay for Goods using a debit card or credit card or to the extent agreed with us in advance by debiting your account with us.
8.2 Unless credit terms apply, payment for the Goods and all applicable delivery charges is in advance.
9.1 The Goods are intended for use only in the UK. We do not warrant that the Goods comply with the laws, regulations or standards outside the UK.
9.2 We provide a warranty that on delivery, the Goods shall:
9.2.1 subject to clause 4, conform with their description; and
9.2.2 be free from material defects in design, material and workmanship.
9.3 Subject to clause 9.4, if:
9.3.1 you give us notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 9.2;
9.3.2 we are given a reasonable opportunity of examining the Goods; and
9.3.3 if we ask you to do so, you return the Goods to us at our cost,
we will, at our option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
9.4 We will not be liable for breach of the warranty set out in clause 9.2 if:
9.4.1 you make any further use of the Goods after giving notice to us under clause 9.3;
9.4.2 the defect arises as a result of us following any drawing, design, or specification supplied by you;
9.4.3 the defect arises because you failed to follow our 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;
9.4.4 you alter or repair the Goods without our written consent;
9.4.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
9.4.6 the Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
9.5 We will only be liable to you for the Goods' failure to comply with the warranty set out in clause 9.2 to the extent set out in this clause 9.
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 Terms also apply to any repaired or replacement Goods supplied by us to you.
10 Our liability: your attention is particularly drawn to this clause
10.1 References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.2 Nothing in these Terms limits or excludes our liability for:
10.2.1 death or personal injury caused by our negligence;
10.2.2 fraud or fraudulent misrepresentation;
10.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
10.2.4 any other liability that cannot be limited or excluded by law.
10.3 Subject to clause 10.2, we will under no circumstances be liable to you for:
10.3.1 any loss of profits, sales, business, or revenue;
10.3.2 loss of business opportunity;
10.3.3 loss of anticipated savings;
10.3.4 loss of goodwill; or
10.3.5 any indirect or consequential loss.
10.4 Subject to clause 10.2, our total liability to you for all losses arising under or in connection with the Contract will in no circumstances exceed the price of the Goods.
10.5 Except as expressly stated in these Terms, we do not give any representations, warranties or undertakings in relation to the Goods. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Goods are suitable for your purposes.
11 Intellectual property rights
11.1 All intellectual property rights in or arising out of or in connection with the provision of the Goods (other than intellectual property rights in any materials provided by you) shall be owned by us or our licensors. This includes all copyrights and other intellectual property rights in our Stock Pre-Pack and Stock Outer Pack imagery, which you acknowledge and agree are owned by or licensed to us and which imagery shall not be used or reproduced in any way other than for the specific permitted usage set out in clause 11.2 below.
11.2 We grant to you, or shall procure the direct grant to you of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to make photographic images or other accurate digital representations of the Goods for the specific purpose only of displaying or publishing representations of the Goods in order to market and sell the Goods in your business, for example on your website or in your customer catalogues, or similar.
11.3 You shall not sub-license, assign or otherwise transfer the rights granted by clause 11.2.
11.4 You grant to us a fully paid-up, non-exclusive, royalty-free licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Goods to you.
11.5 You shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by us arising out of or in connection with any claim made against us for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with our use of any materials provided by you to us. This clause 11.5 shall survive termination of the Contract.
12 Termination
12.1 Without limiting any of our other rights, we may suspend the supply or delivery of the Goods to you, or terminate the Contract with immediate effect by giving written notice to you if:
12.1.1 you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within five days of you being notified in writing to do so;
12.1.2 you fail to pay any amount due under the Contract on the due date for payment;
12.1.3 you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your 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 your 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;
12.1.4 you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
12.1.5 your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
12.2 Termination of the Contract shall not affect your or our rights and remedies that have accrued as at termination.
12.3 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.
13.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (“Event Outside Our Control”).
13.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
13.2.1 we will contact you as soon as reasonably possible to notify you; and
13.2.2 our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of Goods to you, we will arrange a new delivery date with you after the Event Outside Our Control is over.
14.1 When we refer to "in writing" in these Terms, this includes email.
14.2 Any notice or other communication given by one of us to the other under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
14.3 A notice or other communication is deemed to have been received:
14.3.1 if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
14.3.2 if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
14.3.3 if sent by email, at 9.00 am the next working day after transmission.
14.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
14.5 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
15.1.1 We may assign or transfer our rights and obligations under the Contract to another entity.
15.1.2 You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
15.2 Variation. Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
15.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not exercise our rights or remedies against you, or if we delay in doing so, that will not mean that we have waived our rights or remedies against you or that you do not have to comply with those obligations. If we do waive any rights or remedies, we will only do so in writing, and that will not mean that we will automatically waive any right or remedy related to any later default by you.
15.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
15.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.
15.6 Governing law and jurisdiction. This Contract is governed by English law and each party irrevocably agrees to submit all disputes arising out of or in connection with this Contract to the exclusive jurisdiction of the English courts.
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TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES BY DISPAK LIMITED (Non Website Orders)
(Company Number: 02050242)
The Customer's attention is drawn in particular to the provisions of clause 12 (Limitation of liability).
The following definitions and rules of interpretation apply in these Conditions.
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Business Day |
a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business. |
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Commencement Date |
has the meaning given in clause 2.3. |
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Conditions |
these terms and conditions as amended from time to time in accordance with clause 16.4. |
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Contract |
the contract between the Supplier and the Customer for the sale and purchase of Goods and/or the supply of the Services in accordance with these Conditions. |
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Customer |
the person or firm who purchases the Goods and/or Services from the Supplier. |
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Deliverables |
the deliverables set out in the Order produced by the Supplier for the Customer. |
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Delivery Location |
has the meaning given in clause 4.2. |
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Force Majeure Event |
has the meaning given to it in clause 15. |
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Goods |
the goods (or any part of them) set out in the Order. |
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Goods Specification |
any specification for the Goods, including any names, logos or other trade marks, and any text, pictures or graphics, and any related plans or drawings, that is agreed in writing by the Customer and the Supplier. |
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Intellectual Property Rights |
patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. |
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Order |
the Customer's order for the Goods and/or the supply of the Services, as set out in the Customer's order form, the Customer's written acceptance of the Supplier's quotation, or overleaf, as the case may be. |
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Services |
the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification. |
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Service Specification |
the description or specification for the Services provided in writing by the Supplier to the Customer. |
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Supplier |
Dispak Limited (registered in England and Wales with company number 02050242). |
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Supplier Materials |
has the meaning given in clause 8.1.6. |
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a party includes its successors and permitted assigns.
1.4 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.6 A reference to writing or written includes fax and email.
2.1 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 law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase Goods or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Goods are described in the Supplier's catalogue as modified by the Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the Supplier's use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods (including the product reference of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.2 To the extent specified in the Order, the Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (the “Delivery Location”) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 To the extent that they are not intended for delivery the Supplier, the Customer shall collect the Goods from the Supplier's premises at Lysander Road, Bowerhill Estate, Melksham, Wiltshire, SN12 6SP or such other location as may be agreed with the Customer before delivery (the “Collection Location”) within three Business Days of the Supplier notifying the Customer that the Goods are ready or such other date and time as specified by the Supplier.
4.4 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location or the loading of the Goods at the Collection Location.
4.5 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions for the Goods or any other instructions that are relevant to the supply of the Goods.
4.7 If the Customer fails to take or accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:
4.7.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
4.7.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.8 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 The Supplier warrants that on delivery the Goods shall:
5.1.1 conform with their description and any applicable Goods Specification; and
5.1.2 be free from material defects in design, material and workmanship.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Supplier's cost.
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2.1;
5.3.2 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;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 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.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1 the Supplier receives payment in full (in cash or cleared funds) for the Goods, in which case title to the Goods shall pass at the time of payment; and
6.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.2.2 to clause 13.2.4; and
6.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 Subject to clause 6.5, 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:
6.4.1 it does so as principal and not as the Supplier’s agent; and
6.4.2 title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 13.2.2 to clause 13.2.4, then, without limiting any other right or remedy the Supplier may have:
6.5.1 the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
6.5.2 the Supplier may at any time:
(a) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(b) 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.
7.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8.1 The Customer shall:
8.1.1 ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate;
8.1.2 co-operate with the Supplier in all matters relating to the Services;
8.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
8.1.4 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
8.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
8.1.6 keep all materials, equipment, documents and other property of the Supplier (“Supplier Materials”) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation; and
8.1.7 comply with any additional obligations as set out in the Service Specification and the Goods Specification; and
8.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
8.2.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
8.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 8.2; and
8.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9.1 The price of the Goods:
9.1.1 shall be the price set out in the Order or, if no price is quoted, the price previously agreed with the Customer or the price set out in the Supplier's published price list in force as at the date of delivery; and
9.1.2 shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.
9.2 The charges for Services shall be as set out in the Order;
9.3 The Supplier reserves the right to:
9.3.1 increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index;
9.3.2 increase the price of the Goods, by giving notice to the Customer at any time up to five Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods to the Supplier that is due to:
(a) any factor beyond the Supplier's control (including, but not limited to, foreign exchange fluctuations and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(c) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions
9.4 The price of the Goods:
9.4.1 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;
9.4.2 excludes any additional costs imposed on the Supplier at any time before delivery, including but not limited to freight forwarding costs, which the Customer shall additionally be liable to pay to the Supplier on a pass through basis; and
9.4.3 excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
9.5 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
9.6 In respect of Services, the Supplier shall invoice the Customer in advance or as specified in the Order.
9.7 The Customer shall pay each invoice submitted by the Supplier:
9.7.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
9.7.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
9.8 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 13 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.8 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10 Intellectual property rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the provision of the Goods or the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier or its licensors. This includes all copyrights and other Intellectual Property Rights in the Supplier’s Stock Pre-Pack and Stock Outer Pack imagery, which the Customer acknowledges and agrees are owned by or licensed to the Supplier and which imagery shall not be used or reproduced in any way other than for the specific permitted usage set out in clause 10.2 below.
10.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to:
10.2.1 make photographic images or other accurate digital representations of the Goods for the specific purpose only of displaying or publishing representations of the Goods in order to market and sell the Goods in its business, for example on its website or in its customer catalogues, or similar; and
10.2.2 copy the Deliverables for the specific purpose only of receiving and using the Services and the Deliverables in its business, as permitted under the Contract.
10.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 10.2.
10.4 The Customer grants to the Supplier a fully paid-up, non-exclusive, royalty-free licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Goods and the Services to the Customer.
10.5 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the Supplier's use of any materials provided by the Customer to the Supplier. This clause 10.5 shall survive termination of the Contract.
11.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 11.2.
11.2 Each party may disclose the other party's confidential information:
11.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 11; and
11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
12 Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
12.1 The restrictions on liability in this clause 12 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
12.2.1 death or personal injury caused by negligence;
12.2.2 fraud or fraudulent misrepresentation;
12.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
12.2.4 defective products under the Consumer Protection Act 1987.
12.3 Subject to clause 12.2, the Supplier's total liability to the Customer shall not exceed the cost of the Goods or the Services specified in an Order.
12.4 Subject to clause 12.2, the following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
12.5 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
12.6 This clause 12 shall survive termination of the Contract.
13.1 The Customer may not cancel the Contract following the Commencement Date.
13.2 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
13.2.1 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;
13.2.2 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;
13.2.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
13.2.4 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.
13.3 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 13.2.2 to clause 13.2.4, 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.
13.4 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 Consequences of termination
14.1 On termination of the Contract for any reason :
14.1.1 the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
14.1.2 the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
14.2 Termination or expiry of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
14.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a “Force Majeure Event”). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 8 weeks the party not affected may terminate this Agreement by giving 7 days' written notice to the affected party.
16.1 Assignment and other dealings
16.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
16.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, 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.
16.2 Confidentiality
16.2.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause (a).
(a) the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 16.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
16.2.2 Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
16.3 Entire agreement.
16.3.1 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.
16.3.2 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.
16.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.5 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.
16.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision of the Contract is deemed deleted under this clause 16.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
16.7 Notices.
16.7.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by fax to its main fax number or sent by email to the address notified to a party by the other.
16.7.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) 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 or at the time recorded by the delivery service; and
(c) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
16.7.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
16.8 Third party rights.
16.8.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
16.9 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.
16.10 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.