True Brands Limited Terms of sale and supply DEFINITIONS (In these Terms of Sale) “Contract” means the contract for the sale and purchase of the Goods; “Customer” means the person, firm or business whose Order is accepted by True Brands Ltd in accordance with these Terms; “Equipment” means any apparatus, display units and other equipment provided by True Brands Ltd. to the Customer from time to time; “Goods” means goods which are the subject of the Customer’s Order; “Order” means an order submitted by the Customer either by telephone or in writing in accordance with True Brands Ltd’s order procedure; “Price” means the price for the Goods shown in True Brands Ltd’s price list current at the date of True Brands Ltd’s acceptance of the Order; “Promotional Terms” means any terms in respect of promotions, offers and/or concessions relating to the Order in question agreed by True Brands Ltd in writing prior to the acceptance of such Order; “TB” means True Brands Ltd. of Unit 2 The GP Centre, Yeomans Road, Ringwood. Hants BH24 3FF.Tel: 01202 768883 Fax: 01202 757400, E-mail Address: firstname.lastname@example.org, Registered No. 6766725.
1.CONTRACT FORMATION & ENTIRE AGREEMENT
1.1 No Contract shall come into existence and no Order shall be binding upon TB until the Customer’s Order is accepted by TB by the earliest of:
1.1.1 The written acceptance of TB
1.1.2 The delivery of the Goods; or
1.1.3 The invoice of TB.
1.2 Once an Order has been accepted a Contract is formed between the Customer and TB and this may not be subsequently cancelled or varied by the Customer without the written agreement of TB and on terms that the Customer shall indemnify TB in full against all loss (including loss of profit and/or mark-up), costs, damages, charges and expenses incurred by TB as a result of cancellation.
1.3 These Terms and Conditions shall, together with the Order in question and any Promotional Terms, represent the entire agreement of the Customer and TB and shall override any differing terms and/or conditions which may appear or be referred to by the Customer in any correspondence or other documentation.
1.4 The Customer acknowledges that in entering into a Contract, it has not done so in reliance upon any representation or warranty except as expressly provided in these Terms, the Order and/or Promotional Terms in question.
1.5 These Terms shall, unless TB agrees to the contrary, govern all supplies of Goods by TB. No change may be made to the Terms except with the written consent of TB which reserves the right to correct clerical errors in these Terms, any Order and any Promotional Terms.
2. DELIVERY & RISK
2.1 Goods are dispatched at the Customer’s expense (being such sum as is equal to the carrier fees incurred by TB) unless otherwise agreed in writing and for the avoidance of doubt risk in the Goods shall pass to the Customer on delivery to the carrier or representative of the Customer of which TB has been previously advised. Unless otherwise agreed in writing such charges as are incurred in offering fulfilment of overseas orders may be invoiced at the same time or separately to the dispatch of the Goods.
2.2 Goods supplied will not be accepted for return unless it is agreed in writing prior to the acceptance of the Order in question that such Goods are supplied to the Customer expressly on an approval basis.
2.3 TB will use its reasonable endeavours to provide the Goods by the date specified at the time of acceptance of the Order. However, such dates are estimates only and should the estimate prove inaccurate, TB will use reasonable endeavours to notify the Customer of the rescheduled date for delivery, at the earliest reasonable opportunity. TB shall not be liable to the Customer for any loss, injury, damage or expense consequent upon any delay in supplying the Goods for any cause or reason whatsoever. Delay shall not entitle the Customer to cancel any Contract between the Customer the TB.
2.4 Goods are supplied on the understanding that they are for resale and use within the United Kingdom and Eire. 2.5 Goods are sold subject to the conditions that they shall not by way of trade or otherwise be re-sold hired out or otherwise circulated without prior consent in any form other than that in which they were supplied.
3. DELIVERY AND DISPUTES In the event of complete loss or non-delivery of the Goods or in the event of damaged Goods shortages in delivery or any other queries of a like nature TB must be notified in writing within 7 days of receipt of the delivery or part-delivery. The Customer shall not be entitled to reject the Goods for these reasons if no such notification is given within the time limit prescribed or if it has in any way used them.
4.1 Title to the Goods shall pass to the Customer when the Goods supplied to the Customer under the terms of this Contract or any other contract between TB and the Customer have been paid in full. 4.2 Until property in the title the Goods has passed to the Customer in accordance with Clause
4.2 above the Customer shall have a right to possession of the Goods, and shall so far as practicable keep the Goods separate from other Goods on its premises in such a way that they are clearly identifiable as the property of TB.
4.3 The Customer’s right of possession in the Goods shall automatically determine without the need for notice upon the happening of any of the following events:
4.3.1 If the Customer is in default of any of its obligations hereunder including but not limited to failure to make any payment when due; or
4.3.2 If the Customer enters into or does anything to enter into an agreement with its creditors, bankruptcy, liquidation, receivership, administrative receivership or makes any proposal to its creditors for a composition or other voluntary arrangement.
4.4 On such determination as stated above the Customer shall promptly place the Goods at the disposal of TB and without prejudice to any other rights or remedies it shall be entitled to enter upon the Customer’s premises and do all other things necessary for the purpose of removing the Goods without incurring any liability for damage caused in so doing and for this purpose the Customer shall afford TB all reasonable assistance to locate and take possession of the Goods. Furthermore TB reserves the right to assign or otherwise transfer any of its rights under this Clause to any third party it so desires. For the avoidance of doubt nothing in the Clause shall prevent TB from suing for the Price and any other sums outstanding when due.
5.1 TB reserves the right to change or update any price list, product list and/or other documentation relating to the Goods without prior notice.
5.2 All prices quoted are exclusive of VAT unless otherwise stated
5.3 Invoices will be raised as quickly as possible and will be dispatched with or separately to the Goods.
6.1 In order to enter into any Contract with TB the Customer must open an account with TB. As such, no Orders may be submitted unless and until an account application form has been completed & returned by the Customer and accepted by TB.
6.2 Unless otherwise agreed in writing by TB, payment for the Goods and delivery charges shall be due within 30 days from the date of the relevant invoice. Please note that TB reserves the right to charge interest at the rate of 1.5% per month on any overdue balances.
6.3 Time for payment shall be of the essence for the Contract.
6.4 All costs including legal expenses incurred by TB in recovering overdue debts will be payable by the Customer.
6.5 TB reserves the right to withhold further supplies of Goods in the event of:
6.5.1 Any amounts payable being overdue;
6.5.2 The Customer being in breach of any of these Terms and Conditions; or
6.5.3 For any other reason which at the discretion of TB warrants such action.
6.6 TB may at any time at its complete discretion close a Customer’s account by notice (whether verbally or in writing) to the Customer. In the event of closure of the account all amounts then payable shall become immediately due.
6.7 The Customer shall not be entitled to make any deduction from any payment due under any Contract in respect of any alleged right of setoff or counterclaim.
7.1 TB may provide Equipment to the Customer from time to time subject to the provisions of these Terms. Title to any Equipment provided by TB shall at all times remain with TB.
7.2 The Customer shall have a right to possession of the Equipment, and shall so far as practicable ensure the Equipment is clearly identifiable as the property of TB.
7.3 The Customer’s right of possession in the Equipment shall automatically determine without the need for notice upon the happening of any of the following events:
7.3.1 If the Customer is in default of any of its obligations hereunder including but not limited to failure to make any payment when due;
7.3.2 If the Customer enters into or does anything to enter into an agreement with its creditors, bankruptcy, liquidation, receivership, administrative receivership or makes any proposal to its creditors for a composition or other voluntary arrangement;
7.3.3 If the Customer’s account with TB is closed; or
7.3.4 If requested by TB (verbally or in writing).
7.4 On such determination as stated above the Customer shall promptly place the Equipment at the disposal of TB and without prejudice to any other rights or remedies it shall be entitled to enter upon the Customer’s premises and do all other things necessary for the purpose of re-moving the Equipment without incurring any liability for damage caused in so doing and for this purpose the Customer shall afford TB all reasonable assistance to locate and take possession of the Equipment. Furthermore TB reserves the right to assign or otherwise transfer any of its rights under this Clause to any third party it so desires.
8. WARRANTY & LIMITATION OF LIABILITY
8.1 Subject to the following provisions, TB warrants that the Goods will be free from defects in workmanship and materials for a period of one year from delivery (after which all liability under this warranty shall cease).
8.2 If any Goods do not conform to such warranty, TB shall at its sole option:
8.2.1 Replace the Goods; or
8.2.2 Take such steps as it deems necessary to bring the Goods into a state where they are free from such defects; or
8.2.3 Take back the Goods found not to conform to the warranty and refund or credit the Customer the appropriate part of the Price.
8.3 Provided that in each of the above cases:-
8.3.1 The Customer returns the defective Goods promptly, post-age prepaid to TB within a reasonable time of discovery of the defect;
8.3.2 The liability of TB shall in no event exceed the appropriate part of the Price paid by the Customer for the defective Goods or part thereof; 8.4 Such performance of any one of those options shall constitute an entire discharge of TB’s liability under the above warranty.
8.5 The above warranty shall not apply to and under no circumstances shall TB have any liability of whatsoever kind for:
8.5.1 Any defects resulting from wear and tear, wilful damage, accident, improper use of the Goods by the Customer or use by the Customer except in accordance with the instructions or advice of TB;
8.5.2 Any defect resulting from adjustment, modification or repair of the Goods (except by TB);
8.5.3 The suitability of any Goods for any particular purpose or use under specific conditions whether or not the purpose or conditions were known or communicated to TB;
8.5.4 Any substitution by TB of any materials or components not forming part of any specification of the Goods agreed in writing with TB;
8.5.5 Any failure of the Goods to comply with any descriptions, illustrations, specifications, figures as to performance, drawings and particulars of weights and dimensions provided by TB contained in TB’s catalogues, price lists or elsewhere since they are merely intended to represent a general idea of the Goods and not to form part of the Contract or be treated as representations;
8.5.6 Any technical information, recommendations, statements (unless fraudulent) or advice furnished by TB its servants or agents not given in writing in response to a specific written request from the Customer before the Contract is made; or
8.5.7 Any variations in the quantities or dimensions of any Goods or change of their specifications or substitution of any materials or components, if the variation or substitution does not materially affect the characteristics of the Goods and the substituted materials or components are of a quality equal or superior to those originally specified.
8.6 The Customer shall be entitled to the benefit of the above warranty which constitutes TB’s entire liability in respect of the supply of the Goods. All other terms, conditions, warranties or other undertakings, whether express or implied by statute, common law, trade usage, custom or otherwise are excluded from any Contract formed.
8.7 TB Ltd shall not be liable: -
8.7.1 In respect of any loss or damage of whatever kind, to premises or other tangible property;
8.7.2 For economic loss, loss of profit or indirect loss or damage of the Customer including, without limitation, any damage to its business, (whether arising by reason of the negligence TB or otherwise) arising out of or in connection with the supply of the Goods (including any delay in supplying or failure to supply the Goods) or their use or resale by the Customer.
8.8 TB shall not be liable to the Customer for any loss or dam-age which may be suffered by the Customer as a direct or indirect result of the supply or use of any Goods or the purpose of the contract for sup-ply being directly or indirectly prevented, hindered or delayed by reason of any circumstances outside the reasonable control of TB including (without limitation) any act of God, war, riot, trade dispute or union disturbance, accident, breakdown of machinery or plant, difficulty in obtaining workmen, materials or transport, failure of any third party contractor or supplier, including without limitation an advertiser or distributor, refusal of any licence or permit.
8.9 TB does not seek to exclude or restrict any legal liability it may have for death or personal injury resulting from its negligence or restrict any of its legal obligations arising under Section 12 of the Sale of Goods Act 1979.
8.10 The Company shall be under no liability under the above warranty if the payment in respect of such Goods has not been paid in full by the due date for payment.
9. INTELLECTUAL PROPERTY The Customer hereby acknowledges that no rights to any copyright or other intellectual property rights subsisting in the Goods or any Equipment or associated documentation are granted to or are otherwise vested in the Customer.
10. UNENFORCEABILITY The invalidity or unenforceability of any term or right arising under any Contract shall in no way effect the enforceability of the remaining rights or terms.
11. WAIVER The failure of either party to enforce or exercise at any time or for any period of time any term of or any right arising under any Con-tract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect the party’s right later to enforce or exercise it.
12. NOTICES All notices and other communications to be served on or given to either party shall be in writing (unless expressly provided otherwise in these Terms) and be delivered or transmitted to the intended recipient’s address as either party may notify to the other from time to time in accordance with this Clause.
13. LAW & JURISDICTION These Terms and Conditions and any Contract of which they form part shall be governed by English law and any dispute arising out of or in connection with the Terms and Conditions and/or any Contract shall be determined by the English courts.
14. ASSIGNMENT TB may assign its rights and obligations under any Contract(s) for the supply of Goods after giving fourteen days notice in writing to the Customer.