1.1 In these terms and conditions (Conditions), the following definitions apply:
Contract: the agreement between the Supplier and the Customer for the supply of Goods and/or Services incorporating these Conditions and the Order.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Goods: the goods to be supplied by the Supplier to the Customer, as set out in the Order.
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 Supplier is or may be entitled; and (f) in whichever part of the world existing.
Order: the Customer’s order for the supply of Goods and/or Services.
Services: the services to be supplied by the Supplier to the Customer, as set out in the Order.
Supplier: Zap of Beacon Road, Rotherwas Industrial Estate, Hereford HR2 6JF.
1.2 In these Conditions, the following rules apply:
(a) a reference to a party includes its successors or permitted assigns;
(b) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; and
(c) a reference to writing or written includes faxes and e-mails.
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 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.
2.3 An Order which has been accepted by the Supplier may not be cancelled by the Customer other than by agreement in writing and the Customer shall, if requested to do so by the Supplier, indemnify the Supplier in full against all loss (including loss of profit), costs (including cost of labour and raw materials), damages, charges and expenses incurred by the Supplier in respect of the Order and its cancellation.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 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 or have any contractual force.
2.6 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 trade, custom, practice or course of dealing.
2.7 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.
2.8 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 To the extent that the Goods are to be manufactured in accordance with instructions or a 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 and other professional costs and expenses) suffered or incurred by the Supplier 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 such manufacture. This clause shall survive termination of the Contract.
3.2 Delivery shall be deemed to have been effected when the Goods have been unloaded at the delivery location (for the avoidance of doubt, the delivery location shall be the location set out in the Order or such other location as the parties may agree in writing). 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 (as defined below), third party manufacturing delays, 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.
3.3 The Supplier warrants that on delivery and for the warranty period specified in the Supplier’s quotation and/or documentation or specifications relating to the Goods (if any) the Goods shall:
(a) conform in all material respects with their description as published or supplied by the Supplier; and
(b) be free from material defects in design, material and workmanship;
3.4 Subject to clause 3.5, if:
(a) the Customer gives notice in writing within 7 days (in respect of any defect apparent on a reasonably careful inspection) or within a reasonable time of discovery (in respect of a latent defect) that some or all of the Goods do not comply with the warranty set out in clause 3.3;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost (unless otherwise agreed between the parties),
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
3.5 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 3.3 if:
(a) the Customer continues to use the Goods after giving notice in accordance with clause 3.4;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or good trade practice;
(c) the defect arises as a result of the Supplier following any specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
3.6 Except as provided above, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 3.3.
3.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 3.4.
3.8 The risk in the Goods shall pass to the Customer on completion of delivery.
3.9 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods. Until title to the Goods has passed to the Customer, the Customer shall 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 and give the Supplier such information relating to the Goods as the Supplier may require from time to time. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1(b), then, without limiting any of its other rights or remedies the Supplier may:
(i) require the Customer to deliver up all Goods in its possession; and
(ii) 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.
4. SUPPLY OF SERVICES
4.1 The Supplier shall provide the Services to the Customer in accordance with the descriptions or specifications of such Services published or provided by the Supplier in all material respects.
4.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services that are agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence.
4.3 The Supplier warrants that the Services will be provided using reasonable care and skill.
5.1 The Customer shall:
(a) ensure that the information it provides to the Supplier is complete and accurate;
(b) co-operate with the Supplier in all matters relating to the supply of Goods and/or Services; and
(c) (if applicable) provide the Supplier, its employees, agents, consultants and subcontractors, with safe access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to perform the Contract.
5.2 If the Customer resells or intends to resell the Goods in the course of trade or business, then the Customer shall ensure that the website on which it sells the Goods:
(a) is hosted on a stable and secure server with appropriate data security measures and facilities for secure payment;
(b) clearly indicates the Customer’s name, registered office or principal place of business, registration number (if applicable), phone number, geographical location (if different from the registered office/principal place of business address) and e-mail address;
(c) includes full details and accurate information in relation to the Goods and their technical features;
(d) only uses images, video clips and technical information supplied or approved by the Supplier in relation to the Goods, such approval not to be unreasonably withheld or delayed;
(e) does not exhibit or sell any item whose trade mark or brand name might give rise to confusion with the Supplier’s trade marks or brand names;
(f) display the different technical steps to follow to conclude the contract for the purchase of the Goods;
(g) explains in clear and unambiguous language how end customers can identify and correct input errors prior to placing an order for the Goods;
(h) displays the Goods:
(i) clearly and prominently and together with appropriate information provided by the Supplier from time to time; and
(ii) as reasonably required by the Supplier from time to time, so that all end customers have the opportunity to view the Goods on the website and to do so in an appropriate environment;
(i) explains in clear and unambiguous language the Customer’s returns policy, the procedure for returning the Goods and arrangements for making reimbursement to the end customer for the postage costs of returned products; and
(j) otherwise complies fully and in all respects with all applicable legal requirements, including but not limited to consumer protection (if applicable), distance selling, e-commerce and data protection laws.
5.3 The Customer shall, where clause 5.2 applies, employ a sufficient number of technically trained employees to support technical enquiries from end customers by telephone and in writing. The Customer shall respond promptly to end customers who contact it in relation to the Goods and shall comply fully and in all respects with all applicable legal requirements, including but not limited to consumer protection (if applicable), distance selling, e-commerce and data protection laws.
5.3 If the Supplier’s performance of any of its obligations is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of its obligations 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 to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) 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; and
(c) 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.
6.1 The price for Goods and Services shall be as set out in the Supplier’s quotation and shall either include or exclude the cost of carriage, as specified in the Supplier’s quotation and/or other sales documentation. The Supplier may increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
(a) any factor beyond the control of the Supplier (including increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the Order; 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.
6.2 The Supplier shall invoice the Customer on or at any time after completion of delivery of the Goods and/or completion of the performance of the Services.
6.3 If the Customer has an approved credit facility, the Customer shall pay each invoice submitted by the Supplier within 30 days of the end of the month in which the invoice is received and in full and in cleared funds to a bank account nominated in writing by the Supplier. Time for payment shall be of the essence of the Contract. If the Customer does not have an approved credit facility, the Customer shall pay all amounts due to the Supplier in advance of the delivery of the Goods and/or performance of the Services.
6.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
6.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6.6 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 7 shall survive termination of the Contract.
8.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other matters in respect of which it would be unlawful to limit or exclude liability.
8.2 Subject to clause 8.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, 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) the Supplier’s total liability to the Customer 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 total amounts paid by the Customer to the Supplier under the Contract.
8.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of an event beyond its reasonable control, including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors (Force Majeure Event).
8.5 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing to do so;
(b) the other party ceases trading or suffers an insolvency or bankruptcy event (including if a company, entering into liquidation, making an arrangement with its creditors, having a receiver or manager appointed over all or any part of its assets or generally becoming unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or if an individual, being declared bankrupt or making any arrangement with or for the benefit of its creditors or having a county court administration order made against you under the County Court Act 1984).
9.2 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 this Contract on the due date for payment.
9.3 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods or Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt, or (at the Supplier’s option) the Customer shall return any 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;
(c) the accrued rights and remedies of the parties as at termination shall not be affected; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
10.1 Assignment and other dealings. The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
10.2 Notices. Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to above; 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; 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 or e-mail, one Business Day after transmission. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
10.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
10.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its 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.
10.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
10.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
10.7 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the Supplier.
10.8 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
10.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).