1. DEFINITIONS AND INTERPRETATION
In these Conditions the following definitions apply:
“Business Day” means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in London;
“Conditions” means the Supplier’s terms and conditions of sale set out in this document; “Contract” means the agreement between the Supplier and the Customer for the supply and
purchase of the Goods incorporating these Conditions and the Order;
“Customer” means the person who purchases the Goods from the Supplier and whose details are set out in the Order;
“Customer Graphics” means any graphic designs, branding or text as provided by the Customer to the Supplier to appear on the Goods or packaging as set out in the Order;
“Force Majeure” means an event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required for performance of the Contract; strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving the Supplier’s or its suppliers workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
“Goods” means the goods and other physical material set out in the Order and to be supplied by the Supplier to the Customer;
“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case:
(a) whether registered or not
(b) including any applications to protect or register such rights
(c) including all renewals and extensions of such rights or applications
(d) whether vested, contingent or future
(e) to which the relevant party is or may be entitled, and
(f) in whichever part of the world existing;
“Location” means the address(es) for delivery of the Goods as set out in the Order;
“Order” means an order for the Goods from the Supplier placed by the Customer as communicated by the Supplier to the Customer by email, telephone call, order form on the website or otherwise;
“Price” has the meaning given in clause 3.1;
“Specification” means the description or specification of the Goods and their packaging set out
or referred to in the Order;
“Supplier” means The Luncacy Project Ltd, a company incorporated in Scotland (SC540738) having its registered office at 38 Gower Street, Glasgow, UK, G51 1PH; and
“VAT” means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods.
In these Conditions, unless the context requires otherwise:
1.2.1 any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
1.2.2 a reference to a “party” includes that party’s personal representatives, successors and permitted assigns;
1.2.3 a reference to a “person” includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.4 a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.5 a reference to a gender includes each other gender;
1.2.6 words in the singular include the plural and vice versa;
1.2.7 any words that follow “include”, “i ncludes”, “including”, “in particular” or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.8 a reference to “writing” or “written” includes any method of reproducing words in a legible and non-transitory form (excluding email);
1.2.9 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time; and
1.2.10 a reference to legislation includes all subordinate legislation made as amended from time to time under that legislation.
2. APPLICATION OF THESE CONDITIONS
These Conditions apply to and form part of the Contract between the Supplier and the
Customer. They supersede any previously issued terms and conditions of purchase or supply.
No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Supplier.
Each Order by the Customer to the Supplier shall be an offer to purchase Goods subject to these Conditions.
An Order may be withdrawn or amended by the Customer at any time before acceptance by the Supplier. If the Supplier is unable to accept an Order, it shall notify the Customer as soon as reasonably practicable. The Supplier reserves the right at all times to reject any Order in whole or in part, at its sole discretion.
Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
The Supplier may issue quotations to the Customer from time to time. Quotations are invitations totreatonly. TheyarenotanoffertosupplyGoodsandareincapableofbeingacceptedbythe Customer.
Marketing and other promotional material relating to the Goods are illustrative only and do not form part of the Contract.
The price for the Goods shall be as set out in the Order (“Price”).
The Prices are exclusive of:
[packaging, delivery, and insurance] which shall be charged in addition at the Supplier’s standard rates;
[any import duties or taxes and we do not make any estimates or calculations in this regard]; and
VAT (or equivalent sales tax).
[Any international delivery costs shall be determined after an Order has been placed and communicated to the Customer by email. Unless notified by the Customer within 5 Business Days of this email that the Customer wishes to cancel the Order on the grounds of delivery costs, the Customer shall be deemed to have accepted this additional cost.]
The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.
The Supplier may increase the Price with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Goods which is due to any factor beyond the control of the Supplier. The Customer shall then have 3 Business Days to cancel any Order that has been placed and would be affected by this change.
The Customer shall pay any deposit as stipulated in the Order and the Supplier shall invoice the Customer for the outstanding amount of the Price payable for the Goods at any time after delivery of any part of the Order.
The Customer shall pay all invoices:
in full without deduction or set-off, in cleared funds within 30 days of the date of each invoice; and
to the bank account nominated by the Supplier.
Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
the Supplier may, without limiting its other rights, charge interest on such sums at 3% per month, and
interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
5. CREDIT LIMIT
The Supplier may set and vary credit limits from time to time and withhold all further supplies if the
Customer exceeds such credit limit.
An Order shall specify whether the Goods are to be delivered by the Supplier, or by a carrier appointed by the Supplier or by the Customer, to the Location on or around the date(s) specified in the Order.
The Goods shall be deemed delivered:
if delivered by the Supplier under clause 6.1, on arrival of the Goods at the Location; or
if delivered by a carrier under clause 6.1, on delivery of the Goods by the Supplier to the carrier.
The Customer shall not be entitled to reject any delivery of Goods on the basis that an incorrect volume of Goods has been supplied provided the volumes are within the tolerances (if any) set out in the Order.
The Goods may be delivered by instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
Delivery of the Goods shall be accompanied by a delivery note stating:
the date of the Order;
the product numbers, type and quantity of Goods in the consignment; and
any special handling instructions.
Time of delivery is not of the essence. The Supplier shall use its reasonable endeavours to meet delivery dates but such dates are approximate only.
The Supplier shall not be liable for any delay in or failure of delivery caused by:
the Customer’s failure to: (i) make the Location available, (ii) prepare the Location or (iii) provide the Supplier with adequate instructions for delivery or otherwise relating to the Goods; or
If the Customer fails to accept delivery of the Goods the Supplier shall store and insure the Goods pending delivery, and the Customer shall pay all costs and expenses incurred by the Supplier in doing so.
If 15 Business Days following the date of the first attempted delivery of the Goods, the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of the Goods and hereby irrevocably grants a royalty free, perpetual licence to use any Intellectual Property Rights of the Customer in order to sell these Goods.
Risk in the Goods shall pass to the Customer on Delivery.
Title to the Goods shall pass to the Customer once the Supplier has received payment in full and cleared funds for the Goods.
Until title to the Goods has passed to the Customer, the Customer shall:
hold the Goods as bailee for the Supplier;
store the Goods separately from all other material in the Customer’s possession;
take all reasonable care of the Goods and keep them in the condition in which they were delivered;
insure the Goods from the date of Delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their Price (iv) noting the Supplier’s interest on the policy;
ensure that the Goods are clearly identifiable as belonging to the Supplier;
not remove or alter any mark on or packaging of the Goods;
inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in clauses 14.1.1 to 14.1.3 or 14.2.1 to 14.2.7; and
on reasonable notice permit the Supplier to inspect the Goods during the Customer’s normal business hours and provide the Supplier with such information concerning the Goods as the Supplier may request from time to time.
9. PROVISION OF GOODS
The Supplier warrants that the Goods shall, for a period of fourteen days from Delivery (the
“Warranty Period”) conform in all material respects to the Order and Specification.
The Supplier shall, at its option, repair, replace, or refund the Price of, any Goods that do not
comply with clause 9.1, provided that the Customer:
serves a written notice on Supplier:
during the Warranty Period in the case of defects discoverable by a physical inspection; or
in the case of latent defects, within one month from the date on which Customer became aware (or should reasonably have become aware) of the defect.
provides the Supplier with sufficient information as to the nature and extent of the defects and the uses to which the Goods had been put prior to the defect arising;
gives the Supplier a reasonable opportunity to examine the defective Goods; and
returns the defective Goods to the Supplier at the Supplier’s expense.
The provisions of these Conditions, including the warranties set out in clause 9.1, shall apply to any Goods that are replaced with effect from Delivery of the replaced Goods.
The Supplier shall not be liable for any failure of the Goods to comply with clause 9.1:
where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise in the normal course of use of the Goods;
to the extent caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;
to the extent caused by the Supplier following any specification or requirement of the Customer in relation to the Goods;
where the Customer modifies any Goods without the Supplier’s prior written consent or, having received such consent, not in accordance with the Supplier’s instructions; or
where the Customer uses any of the Goods after notifying the Supplier that they do not comply with clause 9.1.
Except as set out in this clause 9:
the Supplier gives no warranties and makes no representations in relation to the Goods; and
shall have no liability for their failure to comply with the warranty in clause 9.1,
and all warranties and conditions (including the conditions implied by ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
While the Supplier shall use reasonable endeavours to ensure that the colours of the Goods or any packaging closely match those as set out in the Specification, the actual colours of the Goods or packaging may slightly vary depending on the exact pantone available.
10. INDEMNITY AND INSURANCE
The Customer shall indemnify the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses which the Supplier may suffer or incur directly or indirectly from the Customer’s breach of any of its obligations under the Contract.
The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under the Contract. On request, the Customer shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.
11. LIMITATION OF LIABILITY
The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.
Subject to clauses 11.4 and 11.5, the Supplier’s total liability shall not exceed the total Price that has been paid by the Customer in relation to the Order.
Subject to clause 11.4, the Supplier shall not be liable for consequential, indirect or special losses.
Subject to clause 11.5, the Supplier shall not be liable for any of the following (whether direct or indirect):
loss of profit;
loss of data;
loss of use;
loss of production;
loss of contract;
loss of opportunity;
loss of savings, discount or rebate (whether actual or anticipated);
harm to reputation or loss of goodwill.
Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation; or
any other losses which cannot be excluded or limited by applicable law.
12. INTELLECTUAL PROPERTY
All Customer Graphics provided by the Customer to the Supplier for use on or in relation to the Goods and the packaging for the Goods is, and shall remain, the property of the Customer. The Customer grants to the Supplier a non-exclusive royalty free licence to use, copy, adapt, disclose and create derivative works in the Intellectual Property Rights in the Customer Graphics for the purpose of supplying the Goods, exercising its rights and performing its obligations hereunder and also for marketing and promotion purposes of the Supplier.
The Customer shall not represent, warrant or undertake that it has any rights in or title to the Intellectual Property Rights of the Supplier. The Customer represents, warrants and undertakes that it shall not, whether by act or omission, allow the rights of the Supplier to be impaired with regard to the Intellectual Property Rights of the Supplier.
In the event that full payment for the Goods is not recovered by the Supplier within 60 Business Days of the date of the invoice sent in accordance with clause 4, the Supplier shall be entitled to sell the Goods to any other third party and shall be under no obligation to deliver the Goods to the Customer.
The Customer warrants that it has the necessary permissions and consents to supply the Customer Graphics to the Supplier and to enable the Supplier to use the Customer Graphics for the purpose of supplying the Goods.
The Customer warrants that any Customer Graphics and their use by the Supplier in connection with the provision of the Goods shall not infringe the Intellectual Property Rights of any third party and shall at all times indemnify and keep the Supplier fully and effectively indemnified against any liability (which liability shall include, without limitation, all losses, costs, claims, expenses, demands, actions, damages, legal and other fees and expenses) which the Supplier may suffer or incur as a result of, or by reason of, use by the Supplier of any Customer Graphics.
13. FORCE MAJEURE
Neither party shall have any liability or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party, including without limitation labour disputes involving that party. The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
The Supplier may terminate the Order at any time by giving notice in writing to the Customer if:
the Customer commits a material breach of the Contract;
any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;
becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
has a resolution passed for its winding up;
has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it; or
suffers any analogous event to any of the above under the laws of any other jurisdictions.
If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 14, it shall immediately notify the Supplier in writing.
Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
15. DISPUTE RESOLUTION
Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 15.
The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures:
15.3.1 Within 7 days of service of the notice, the contract managers of the parties shall set up a meeting (which may take place via any method of communication) to discuss the dispute and attempt to resolve it.
15.3.2 If the dispute has not been resolved within 7 days of the first meeting of the contract managers, then the matter shall be referred to the directors. A director of each party shall meet (which may take place via any method of communication) within 7 days to discuss the dispute and attempt to resolve it.
The specific format for the resolution of the dispute under clause 15.3.1 and, if necessary, clause 15.3.2 shall be left to the reasonable discretion of the parties, but may include the preparation and submission of statements of fact or of position.
If the dispute has not been resolved within 14 days of the first meeting of the directors under clause 15.3.2 then the matter may be referred to mediation.
Notices under this Agreement shall be in writing and sent to a Party’s address as set out on the first page of this Agreement. Notices may be given, and shall be deemed received:
16.1.1 by first-class post: two Business Days after posting; or
16.1.2 by airmail: seven Business Days after posting.
This clause does not apply to notices given in legal proceedings or arbitration.
A notice given under this Agreement is not validly served if sent by email.
17. CUMULATIVE REMEDIES
The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.
Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Customer’s obligations only.
19. FURTHER ASSURANCE
The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
20. ENTIRE AGREEMENT
The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
Nothing in these Conditions purports to limit or exclude any liability for fraud.
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and is duly signed or executed by, or on behalf of, the Supplier.
The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent.
23. SET OFF
The Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract.
The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
24. NO PARTNERSHIP OR AGENCY
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
25. EQUITABLE RELIEF
The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.
28. COMPLIANCE WITH LAW
The Customer shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
29. CONFLICTS WITHIN CONTRACT
If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail.
30. COSTS AND EXPENSES
The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).
31. THIRD PARTY RIGHTS
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
32. GOVERNING LAW
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).