EXCEPTIO LIMITED – TERMS AND CONDITIONS OF SALE
1. BASIS OF CONTRACT
Your purchase order (Order) constitutes your offer to purchase the goods set out in the Order (Goods) in accordance with these terms and conditions (Conditions). You are responsible for ensuring that the terms of the Order and any applicable specification for the relevant Goods are complete and accurate.
The Order shall only be deemed to be accepted when we issue you with written confirmation of the Order at which point a contract between us for the supply of Goods in accordance with these Conditions (Contract) shall come into existence.
The Contract constitutes the entire agreement between us. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in the Contract.
Other than samples which we have provided to you as the final confirmation of the Goods’ specification and which you have agreed as the gold seal sample (Gold Seal Sample), any samples, drawings, descriptive matter, or advertising produced by us are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
These Conditions apply to all Contracts to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
A quotation for the Goods given by us shall not constitute an offer. Unless otherwise set out by us, a quotation shall only be valid for a period of 28 days from its date of issue.
2. INTELLECTUAL PROPERTY RIGHTS
Where the Goods incorporate any designs produced by us, all intellectual property rights arising out of or in connection with such designs (Exceptio Intellectual Property) shall be owned by us but we hereby grant you a non-exclusive licence to such Exceptio Intellectual Property solely to the extent necessary for you to re-sell the Goods. Such licence shall be perpetual save that we shall be entitled to revoke it where you fail to pay the Price in accordance with clause 7.6. We shall be entitled to re-use Exceptio Intellectual Property in any goods sold to other customers.
Where we manufacture Goods in accordance with any design or sample supplied by you (whether or not subsequently modified by us) or we brand Goods in accordance with your instructions, 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 and other professional costs and expenses) suffered or incurred by us 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 the design, sample or branding. This clause 2.2 shall survive termination of the Contract.
Where we provide you with designs (including but not limited to concept boards, concept art, packaging designs, label designs and samples) you are strictly prohibited from using them for any purpose other than evaluating our designs and you may not disclose them to any third party. On bulk production of the Goods pursuant to an Order, we shall grant you a non-exclusive licence to use any related designs solely to the extent necessary for you to sell or otherwise dispose of the relevant Goods.
You shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of opportunity and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by us in connection with any infringement by you of our intellectual property rights (including but not limited to any breach of clause 2.3 above). This clause 2.4 shall survive termination of the Contract.
3. PRE-ORDER DEVELOPMENT WORK AND SPECIFICATIONS
Where, at your request, we provide assistance and services to you in connection with product development prior to an Order (Pre-Order Developmentt Work) such assistance and services are provided to you subject to these Conditions. We shall be entitled to invoice you for all our costs and expenses associated with any Pre-Order Development Work (including but not limited to in respect of any samples, management time, design time, artwork and material) in the event that you confirm, or we reasonably determine, that you will not place an Order for Goods relating to the relevant Pre-Order Development Work (and our invoice will be payable within 30 days of the date thereof).
We reserve the right to amend any Gold Seal Sample, specification or design if required by any applicable statutory or regulatory requirements.
Unless agreed otherwise, we shall deliver the Goods to the location set out in the Order or such other location as we may agree (Delivery Location) at any time after we notify you that the Goods are ready.
Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
Any dates quoted for delivery are approximate only and the time of delivery is not of the essence. We shall not be liable for any delay in delivery of the Goods that is caused by an event beyond our reasonable control or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If we fail to deliver the Goods, our liability shall be limited to (at our sole discretion) replacing the Goods within a reasonable time or issuing a credit note in respect of any part of any invoice raised for such Goods.
We shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by an event beyond our reasonable control or your failure to provide adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If you fail to accept delivery of the Goods within seven days of us notifying you that the Goods are ready or we are unable to deliver the Goods on time because you have not provided appropriate instructions, documents, licences or authorisations then:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the seventh day after the day on which we notified you that the Goods were ready; and
(b) we shall store the Goods until delivery takes place, and charge you for all our related costs and expenses (including insurance).
If 30 days after the day on which we first notified you that the Goods were ready for delivery you have not taken delivery of them, we may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to you for any excess over the price of the Goods or charge you for any shortfall below the price of the Goods. Without prejudice to our rights at clause 2.2, where such Goods were made in accordance with designs or samples produced by you (Customer Intellectual Property) you hereby grant us an irrevocable nonexclusive licence in such Customer Intellectual Property to the extent necessary for us to re-sell the Goods.
You shall not be entitled to reject the Goods if we deliver up to and including 10% (or such other percentage as agreed between us in writing) more or less than the quantity of Goods ordered. A pro rata adjustment shall however be made to the Order invoice on receipt of notice from you that the wrong quantity of Goods was delivered provided that: –
(a) such notice is provided to us within 24 hours of delivery where any shortfall in the amount of Goods delivered is caused by a discrepancy in the number of cartons delivered to you; and
(b) such notice is provided to us within 7 days of delivery where any shortfall in the amount of Goods delivered is caused by a discrepancy in the contents of any cartons delivered to you.
Unless agreed otherwise the Goods will be delivered to you in a single delivery to the Delivery Location save that we at our sole discretion 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 you to cancel any other instalment.
We warrant that on delivery and for a period of 6 weeks from the date of delivery or if earlier 7 days from the date of sale by you to the end user customer (Warranty Period), the Goods shall:
(a) conform in all material respects with the relevant Gold Seal Sample and any other agreed specification; and
(b) be free from material defects in material, workmanship and design to the extent such design has been produced solely by us.
Subject to clause 5.3, if:
(a) you give notice in writing to us during the Warranty Period 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;
(b) we are given a reasonable opportunity of examining such Goods; and
(c) you (if asked to do so by us) return such Goods to our place of business at your cost, we shall, at our option:
(a) repair and where necessary re-label, re-card and re-package the defective Goods;
(b) replace the defective Goods;
(c) refund the price of the defective Goods in full; or
(d) agree a discount with you in respect of the defective Goods.
We 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:
(a) the Goods or a sample of the Goods have, before delivery, been inspected by independent testing agents appointed by either you or us;
(b) you make any further use of such Goods after giving notice in accordance with clause 5.2;
(c) the defect arises because you stored the Goods under direct light;
(d) the defect arises because you failed to store the Goods in clean and dry conditions;
(e) the defect arises because you failed to follow our oral or written instructions as to the storage and/or use of the Goods or (if there are none) good trade practice regarding the same;
(f) the defect arises as a result of us following any drawing, design or specification supplied or agreed by you;
(g) you alter or repair such Goods without our written consent;
(h) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage conditions; or
(i) the Goods differ from the relevant Gold Seal Sample and/or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
Except as provided in this clause 5, we shall have no liability to you in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
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.
These Conditions shall apply to any repaired or replacement Goods supplied by us.
Any information provided by us regarding the fibre composition of the Goods is strictly for guidance purposes only and no warranty is given or implied as to the accuracy of such information.
6. TITLE AND RISK
The risk in the Goods shall pass to you on completion of delivery.
Notwithstanding delivery, title to the Goods shall not pass to you until:
(a) we receive payment in full (in cash or cleared funds) for
(i) the Goods; and
(ii)any other goods that we have supplied to you, in which case title to the Goods shall pass at the time of payment of all such sums; or
(b) (if earlier) you resell the Goods, in which case title to the Goods shall pass to you at the time specified in clause 6.4.
Until title to the Goods has passed to you, you shall:
(a) store the Goods separately from all other goods held by you so that they remain readily identifiable as our property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify us immediately if you become subject to any of the events listed in clause 8.2; and
(e) give us such information relating to the Goods as we may require from time to time.
Subject to clause 6.5, you may resell or use the Goods in the ordinary course of your business (but not otherwise) before we receive payment for the Goods. However, if you resell the Goods before that time:
(a) you do so as principal and not as our agent; and
(b) title to the Goods shall pass from us to you immediately before the time at which you resell the relevant Goods.
If before title to the Goods passes to you, you become subject to any of the events listed in clause 8.2, then, without limiting any of our other rights or remedies we may have:
(a) your right to resell the Goods or use them in the ordinary course of your business ceases immediately; and
(b) we may at any time:
(i)require you to deliver up all Goods in your possession which have not been resold; and
(ii)if you fail to do so promptly, enter any of your premises or any third party’s premises where the Goods are stored in order to recover them.
7. PRICE AND PAYMENT
The price of the Goods shall be the price set out in the relevant Order (Price).
We may on notice and at any time up to delivery increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond our control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by you to change the delivery date(s), quantities or types of Goods ordered or any specification;
(c) any request by you for staged, staggered or instalment deliveries; or
(d) any delay caused by your instructions or your failure to give us adequate or accurate information or instructions.
The price of the Goods is inclusive of the costs and charges of packaging, insurance and transport of the Goods to the Delivery Location in a single delivery. All other costs and charges (including customs and import duties) shall be payable by you unless otherwise agreed by is in writing.
The price of the Goods is exclusive of amounts in respect of any applicable sales tax or value added tax. You shall, on receipt of a valid invoice from us, pay to us such additional amounts in respect of any such taxes as are chargeable on the supply of the Goods.
We may invoice you for the Goods on or at any time after the completion of delivery or if earlier the first delivery date requested by you.
Unless otherwise agreed by us in writing, you shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by us. Time of payment is of the essence.
Without limiting any other right or remedy we may have, if you fail to make any payment due to us under the Contract by the due date for payment (Due Date), we shall have the right to charge interest on the overdue amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly. You shall indemnify us and keep us indemnified for any costs, losses or expenses we incur arising from your failure to pay the Price by the Due Date (including our costs incurred as a result of cancelling any contracts between us).
You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may at any time, without limiting any other rights or remedies we may have, set off any amount owing to us by you against any amount payable by us to you.
All prices quoted by us to you are based and provided on the assumption that these Conditions shall apply. If required, prices and quotes for the provision of goods outside of these Conditions are available on request.
8. TERMINATION AND SUSPENSION
If you become subject to any of the events listed in clause 8.2, we may terminate the Contract with immediate effect by giving written notice to you.
For the purposes of clause 8.1, the relevant events are:
(a) you suspend, or threaten to suspend, payment of your debts, or are unable to pay your debts as they fall due or you admit inability to pay your debts, or (being a company or limited liability partnership) are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) are deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) have any partner to whom any of the foregoing applies;
(b) you commence negotiation with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditor;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up, other than for the sole purpose of a scheme for a solvent amalgamation or reconstruction;
(d) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over you;
(e) (being a company) the holder of a qualifying floating charge over your assets has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets;
(g) (being an individual) you are the subject of a bankruptcy petition or order;
(h) any of your creditors or encumbrancers attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 days;
(i) any event occurs, or proceeding is taken, in respect of you in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a) to clause 8.2(h) (inclusive);
(j) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business;
(k) your financial position deteriorates to such an extent that in our sole opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) you die or, by reason of illness or incapacity (whether mental or physical), are incapable of managing your own affairs or become a patient under any mental health legislation.
Without limiting our other rights or remedies, we may suspend provision of the Goods under the Contract or any other contract between us if you become subject to any of the events listed in clause 8.2(a) to clause 8.2(l) or we reasonably believe that you are about to become subject to any of them, or if you fail to pay any amount due under this Contract on the due date for payment.
8.4 On termination of the Contract for any reason you shall immediately pay to us all of our outstanding unpaid invoices and interest.
Termination of the Contract, however arising, shall not affect any of our rights and remedies against you that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. LIMITATION OF LIABILITY
Nothing in these Conditions shall limit or exclude our liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for any matter in respect of which it would be unlawful for us to exclude or restrict liability.
Subject to clause 9.1:
(a) we shall under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Price.
We may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights or obligations under the Contract. You may not assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under the Contract without our prior written consent.
Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second working day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next working day after transmission. This clause 10.2 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall include e-mails only to the extent that a read receipt or other form of acknowledgement is received by the sender.
If any provision of these Conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of these Conditions and the remainder of such provisions shall continue in full force and effect.
Failure or delay by us in enforcing or partially enforcing any provision of these Conditions shall not be construed as a waiver of any of our rights under these Conditions. Any waiver by us of any breach of, or any default under, any provision of these Conditions by you shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of these Conditions.
No provision of these Conditions shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to the contract.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by us.
These Conditions and the Contract and any dispute or claim arising out of or in connection with them or their subject matter or formation (including but not limited to any claim for an indemnity or any tortious or other non-contractual disputes or claims) shall be governed by and construed solely in accordance with English law and the courts of England and Wales shall have exclusive jurisdiction to hear and decide any such dispute or claim.