Terms & Conditions of Sale
In these Conditions:-
1 "Buyer" means the person whose order for the Goods is accepted by the Seller
2 "Contract" means the contract between Seller and Buyer for the sale and purchase of the Goods
3 "Goods" means the goods and /or services including any parts of them that the Seller is to supply in accordance with these conditions
4 "Seller" means Artistic Licence Holdings Limited or Ten Thousand Things Limited or any subsidiary of either Company
5 The headings in these Conditions are for ease of reference only and shall not affect the interpretation.
The following terms represent the entire terms on which Seller is willing to sell Goods and by placing an order with Seller Buyer agrees that the following terms represent the entire agreement between Buyer and Seller and that these terms shall apply to the exclusion of any previous terms and conditions supplied by Seller; Buyer's own terms and conditions; any pre-contractual statement or any other terms of whatsoever nature not contained herein. No Officer, employee or agent of Seller (other than a Director) has authority to contract for the sale of Goods on any other terms, or to amend, vary or waive these terms, and a Director has authority to do so only in writing.
2. Time of Delivery
2.1 Any time of delivery stated by Seller shall be treated as an estimate only and the time of delivery is not of the essence. Seller will use its reasonable efforts to deliver by that time but gives no other undertaking as to the time of delivery.
2.2 For the avoidance of doubt Seller irrespective of whether or not any charge is made by it for shipping of the Goods specifically disclaims any and all responsibilities for delays caused by the actions of the shipper.
2.3 The Seller shall have no liability for any delay in delivery of the Goods or any failure to deliver the Goods where delivery has been delegated by the Seller to a third party delivery service "Common Carrier" and/or to the extent that such failure is caused by a Force Majeure event or Buyer's failure to provide Seller with adequate delivery instructions or any other instructions that are relevant to the supply of Goods.
2.4 If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
3. Place of Delivery
The Goods shall be delivered to Buyer at the place of delivery recorded on the sales invoice or (if no such address is recorded there) at the premises of Seller.
The price shall, unless Buyer has an established credit account with Seller, be payable in full on or before delivery of the Goods. Time of payment shall be of the essence. In the event that payment is not made when due, Seller may: -
4.1 cancel any contract to supply Goods,
4.2 suspend any Credit Terms, in which case all sums due to Seller from Buyer for Goods previously supplied shall become due and payable immediately,
4.3 charge interest at 8% above the base rate of The Bank of England plus any costs of collection. Such interest shall accrue on a daily basis from the date payment was due until the date of actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
5. Title and Risk
5.1 All risk in the Goods shall pass to Buyer upon delivery to the Buyers delivery address.
5.2 Title to the Goods shall not pass to Buyer until Seller has received payment in full (in cash or cleared funds) for any Goods delivered to the Buyer in respect of which payment has become due.
5.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
(a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller's property;
(b) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
(c) notify the Seller immediately if it becomes subject to any of the events listed in clause 11(c).
5.4 If before title to the Goods passes to the Buyer, the Buyer becomes subject to one of the events listed at 11(c), or the Seller reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Seller may have, the Seller may at any time require the Buyer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Buyer or of any third party where the Seller reasonably believes the Goods are stored in order to recover them.
5.5 The above notwithstanding Seller when charging Buyer for delivery insures the goods for the benefit of Seller until they are delivered to Buyer's delivery address. Buyer must notify Seller of any damage or shortage within 3 days of receipt. Any shortage or damage not notified will not be covered by Sellers insurance and shall be borne by Buyer
6. Fitness for Purpose
6.1 Due to the specialist nature and variable applications of the goods which the Seller may supply, the Seller gives no warranty that the Goods are fit for Buyers purpose or purposes.
6.2 Buyer warrants that he has satisfied himself that the Goods will be fit for every purpose that he requires them and that Buyer does not rely on any skill or judgment of Seller in that regard.
6.3 Buyer further warrants that: -
(a) The Goods will not in any way be adapted or altered, and
(b) He will not give or imply any warranty to any person whom he may sell or let the Goods other than the warranty given by Seller.
6.4 In the United Kingdom the provisions of the Contracts (Rights of Third Parties) Act 1999 are expressly excluded from this Contract.
Buyer shall inspect and test the Goods immediately upon delivery and shall within 3 days after delivery give notice in writing to Seller of any respect in which he alleges that the Goods are not in accordance with the contract. If Buyer shall not have given such notice within that time the Goods shall be deemed to be accepted in every respect in accordance with this Contract.
This clause shall apply to all claims by Buyer against Seller irrespective of whether such claims arise in contract or in tort and whether or not Seller was negligent.
8.1 Nothing in this Contract shall limit or exclude the Seller's liability for claims arising from physical injury to or death of Buyer's personnel and/or third parties, which is directly and wholly caused by the negligence of Seller or its employees in the performance of its or their duties under this Contract or fraud or fraudulent misrepresentation.
8.2 In the event that notice has been given pursuant to clause 7 above that the Goods (or part thereof) are not in accordance with the contract and the price of the Goods has been paid on or before the due date, Seller shall replace or repair the Goods (or part thereof) at its own expense provided that Buyer has within 30 days after the said notice caused the Goods (or parts thereof) that are alleged to be defective to be returned to Seller's premises or such other place as Seller shall direct.
8.3 No remedy other than that provided for in 8.2hereof shall be available to Buyer.
8.4 Without prejudice to the generality of the foregoing Seller: -
(a) Shall not be liable for damages in the nature of or arising from loss of profits, loss of user, loss of revenue, loss of hire or rental in respect of the Goods or any other goods, nor for damages arising from compensation payable by Buyer to any other person, firm, corporation or organization whatsoever, and
(b) shall not be liable for any losses, damages, costs, claims, expenses or liabilities exceeding the purchase price of the Goods or for any loss of profit or indirect or consequential loss arising under or in connection with the Contract;
(c) shall not be liable should the Goods be used otherwise than in accordance with the manufacturer's specification and
(d) in any event the Seller's total liability to the Buyer 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 not exceed the purchase price of the Goods.
8.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by the law, excluded from the Contract
8.6 Buyer undertakes and agrees to indemnify and hold harmless Seller against any and all actions, claims, proceedings, costs, losses, expenses, liabilities, including legal fees, whatsoever and howsoever caused arising out of, connected with, or resulting from the Goods themselves, or use of the Goods (outside of the manufacturers Specification) including without limitation the selection, delivery, possession, use operation, return or any and all damages caused thereby to anyone whatsoever.
9. Warranty Terms
9.1 All products(unless falling under 9.3 below) are covered by a two year return to base warranty ("Warranty Period"). Returns will not be accepted without prior authorisation. Seller's decision on all matters relating to warranty is final.
9.2 In the case of defective or faulty Goods supplied by Seller, Buyers remedy against Seller is limited to a period no longer than 24 months from the date of purchase. If any defect arises during this period Seller reserves the right, at its sole discretion, to repair or replace the goods or to give credit to the value of the purchase price of the Goods. This is subject to the Goods not having been damaged, abused or improperly operated by the Buyer. All warranty items must be returned to Seller by prepaid freight within the Warranty Period.
9.3 Where the Seller is not the manufacturer of the Goods the only warranty provided by the Seller is that given by the manufacturer of the Goods.
10. Force Majeure
Neither party to the Contract shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A "Force Majeure Event" means any event beyond a party's reasonable control.
11.1 Seller shall have the right to terminate any contract immediately by giving notice to Buyer if;
(a) Buyer fails to make payment of any sum due to Seller in accordance with Clause 4 hereof, or
(b) Buyer commits any other material breach of its obligations hereunder; or'
(c) Buyer enters into liquidation, or attempts to enter into any arrangement with its creditors, or shall be the subject of an administration order or shall be the subject of any proposal for a composition for the satisfaction of its debts, or suspends or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due.
11.2 Any termination shall not affect any accrued rights or liabilities of either party.
12. Mediation and Arbitration
12.1 In the event of a dispute arising between the parties whether during the term of this contract or afterwards touching or concerning this contract or its construction or effect or the rights duties or liabilities of the parties under or by virtue of it or otherwise or any other matter in any way connected with or arising out of the subject matter of this contract, the Seller and the Buyer will at first instance make a good faith attempt to settle the dispute amongst themselves. If no such agreement has been reached within 14 days of the dispute arising, then the matter will be referred to either mediation or arbitration at the Seller's election in the manner outlined in clause 13.2.
12.2 Upon the Seller electing to use mediation the dispute shall be referred by the parties to mediation in accordance with the CEDR Model Mediation Procedure to attempt to reach a settlement, (unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve). Upon the Seller electing to use arbitration the dispute shall be referred by the parties to a single arbitrator to be agreed upon by the parties or in default of agreement to be nominated by the President for the time being of the Chartered Institute of Arbitrators in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment of it for the time being in force.
No changes shall be made to the trademarks or packaging on Sellers Goods and the Buyer may not unless specifically authorised in writing by Seller make any reference to the Goods bought from Seller in any form of advertising or publicity media.
14.1 Where the Goods include software or firmware Buyer shall accept a non-exclusive, non-transferable licence to use the software or firmware as provided in these Conditions and subject to the further provisions of Clause 14.2 and 14.3 hereof.
14.2 Buyer shall not copy (other than for normal equipment operation, including system backup), reproduce, translate, adapt, vary or modify the software or communicate any part of it to a third party without the prior written consent of Seller.
14.3 The licence granted by Clause 14.1hereof shall be terminated if Buyer fails, or has failed, to comply with any term or Condition of the Contract.
15. Intellectual Property
15.1 Buyer acknowledges that all rights in respect of patents, copyrights, design rights, trade marks or other industrial or intellectual property rights connected with the Goods shall not pass to Buyer.
15.2 Buyer shall indemnify Seller against any and all liabilities, claims and costs incurred by or made against Seller as a direct or indirect result of carrying out of any of the work required to be done or to the Goods in accordance with the requirements or specifications of Buyer involving any infringement of any rights of any third party.
Any Notice under this contract may be given by either party to the other at their last known address and any notice given by letter shall be deemed to be delivered on the third business day after posting or, if delivered by hand, upon delivery and in proving service by post it shall be sufficient to prove the notice was properly addressed and posted. If sent by fax or email notice shall be deemed to be delivered 30 minutes after it was sent.
17. Waiver & Invalidity
17.1 The failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this contract by the other party shall not be deemed a waiver of that term, covenant, or condition nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other times.
17.2 If any provision in this contract is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in force without being impaired or invalidated in any way.
18. Applicable Law
(1) Buyer shall not assign or otherwise transfer all or any part of its obligations under a contract without the prior written consent of Seller.
(2) The parties acknowledge that any contract under these conditions is given by and interpreted in accordance with the Law applicable in the Country of residence of Seller, but Seller may enforce the contract in any Court of competent jurisdiction.