Standard Terms & Conditions for Business Sale of Goods by Touch Blue
Parties:
‘Seller’ means Touch Blue trading as ‘Touch Blue’.
‘Purchaser’ means any legal person to whom the Seller sells goods under a contract of supply of goods /and/or Services.
1 Formation of contract
1.1 Any quotation sent to the Purchaser by the Seller is sent on the basis exclusively that these conditions are the conditions of contract that shall bind the Seller and the Purchaser to the exclusion of any other terms and conditions (‘the Quotation’).
1.2 Any order sent to the Seller by the Purchaser shall be accepted entirely at the discretion of the Seller, and, if so accepted, will only be accepted upon these conditions (hereafter referred to as the “Conditions”) and by means of the Seller’s standard order acknowledgment form (‘the Acknowledgement’).
1.3 Each order which is so accepted shall constitute an individual legally binding contract between the Seller and the Purchaser and such contract is hereafter referred to in these Conditions as an “Order”.
1.4 In the event that the Seller is to provide to the Purchaser any services additional to the supply of the goods referred to in the Acknowledgment then such supply of services shall be bound by the Seller’s Conditions for the Supply of Services and which are available on request from the Seller.
1.5 Where the Purchaser will be supplying the goods on to a third party it is the responsibility of the Purchaser to bring to the attention of the third party these Conditions.
1.6 These Conditions shall override any contrary different or additional terms or conditions howsoever contained on or referred to in any order form or any other documents or correspondence from the Purchaser, and no addition alteration or substitution of these terms will bind the Seller or form part of any Order unless such addition alteration or substitution is expressly accepted in writing by a person authorised to sign on the Seller’s Specification.
2 Specification
All goods supplied by the Seller shall be in accordance with (i) the Quotation incorporating if relevant a current edition of the relevant Product Description Leaflet as published from time to time by the Seller (copies of which are available from the Seller upon request) and (ii) those further specifications or descriptions (if any) expressly listed or set out on the face of the Acknowledgement. No other specification, descriptive material, written or oral representation, correspondence or statement, promotional or sales literature shall form part of or be incorporated by reference into the Order. The Purchaser is solely responsible for ensuring the suitability and fitness for purpose of all goods Ordered from the Seller regardless of the end-user of the goods.
3 Acceptance
The Purchaser shall be deemed to have accepted all goods upon their delivery by the Seller to the address specified in the Order.
4 Delivery and risk
4.1 Unless otherwise stated in the Acknowledgment, the price quoted includes delivery to the address specified in the Order, provided that the Seller reserves the right to make an additional charge to cover any increase in transport costs occurring before the actual date of delivery.
4.2 Any time or date for delivery given by the Seller is given in good faith, but is an estimate only as the goods or parts of them may be subject to importation and/or manufacture abroad and accordingly time is expressly not of the essence of the contract.
4.3 Risk in the goods shall pass to the Purchaser upon delivery.
5 Title and payment
5.1 The Seller warrants that the Seller has good title to the goods and that (pursuant to s.12 (3) of the Sale of Goods Act 1979, or s.2 (3) of the Supply of Goods and Services Act 1982, whichever Act applies to the Order) it will transfer such title as it may have in the goods to the Purchaser pursuant to Condition 5.5.
5.2 The Seller warrants that it is not aware of any actual or alleged infringements of any intellectual property rights of third parties which relate to the goods other than those (if any) which the Seller has disclosed to the Purchaser prior to acceptance of the Order.
5.3 The Seller shall have no liability to the Purchaser (other than as provided in Condition 10) in the event that the goods to be supplied under the Order infringe any intellectual property rights of a third party (including without limitation by reason of their possession, sale or use, whether alone or in association or combination with any other goods); the Seller gives no warranty that the goods to be supplied under the Order will not infringe as aforesaid, and all conditions, warranties, stipulations or other statements whatsoever relating to such infringement or alleged infringement (if any), whether express or implied, by statute, at common law or otherwise howsoever, are hereby excluded.
5.4 Unless otherwise stated in either of the Quotation or the Acknowledgement, payment of the price of the goods comprised in each consignment delivered pursuant to an Order shall be such sum as is stated in (subject to clause 4.1 of these Conditions) and shall become due upon presentation of the Seller’s pro forma invoice (‘the Price’).
5.5 Title to the goods comprised in each consignment shall not pass to the Purchaser until the Purchaser has paid the Price to the Seller, but, even though title has not passed, the Seller shall be entitled to sue for the Price once its payment has become due.
5.6 Any sum due and owing to the Seller from the Purchaser shall bear interest at 8% per annum above the base lending rate from time to time of the Bank of England and which shall be paid by the Purchaser to the Seller calculated on a daily basis from the date on which payment was due until the date of actual payment as cleared funds in the Seller’s bank account. The Purchaser shall pay to the Seller as a debt the costs of all enforcement of the provisions of the contract including expenses, disbursements and legal fees (together with VAT thereon where the same is not recoverable by the Seller) on the indemnity basis.
6 Storage
If the Seller shall be unable, through circumstances beyond its control (including without limitation lack of shipping instructions from or refusal to accept delivery by the Purchaser), to deliver the goods within 14 days after notification to the Purchaser or its agent that the goods are ready for delivery, the Seller shall be entitled to arrange storage on behalf of the Purchaser, whereupon delivery shall be deemed to have taken place, all risk in the goods shall pass to the Purchaser, and delivery to the Purchaser of the relevant warehouse receipt shall be deemed to be delivery of the goods for the purposes of Conditions 3 and 4. All charges incurred by the Seller for shipping, transport, storage and insurance shall be paid by the Purchaser within 7 days of submission of an invoice.
7 Damage in transit
The seller will replace or in its entire discretion rectify to as new condition free of charge any goods proved to the Seller’s satisfaction to have been damaged in transit provided that within 24 hours after delivery both the Seller and the carriers have received from the Purchaser notification in writing of the occurrence of the damage and also, if and so far as practicable, of its nature and extent.
8 Force Majeure
8.1 The Seller shall not be under any liability for any failure to perform any of its obligations under the Order due to Force Majeure. Following notification by the Seller to the Purchaser of such cause, the Seller shall be allowed a reasonable extension of time for the performance of its obligations.
8.2 For the purposes of this Condition, “Force Majeure” means fire, explosion, flood, lightning, Act of God, act of government, terrorism, war, rebellion, riot, sabotage, or official strike or similar official labour dispute, or any events or circumstances outside the reasonable control of the Seller.
9 Guarantee
9.1 For goods which are sold to the Purchaser by the Seller under a contract subject to these Terms and Conditions the Seller grants the following guarantee.
9.1.1 The Seller shall free of charge either repair or, at its option, replace defective goods where the defects appear under proper use and as disclosed to the Seller in the Order and arise within 12 months from the date of delivery PROVIDED THAT:
9.1.1.1 notice in writing of the defects complained of shall be given to the Seller upon their appearance, and
9.1.1.2 such defects shall be found to the Seller’s satisfaction to have arisen solely from faulty design, the Seller’s workmanship or materials, and
9.1.1.3 the defective goods shall be returned to the Seller’s factory at the Purchaser’s expense for all purposes connected with the provisions of this clause 9.
9.1.2 Any repaired or replaced goods shall be redelivered by the Seller free of charge to the original point of delivery but otherwise in accordance with and subject to these Conditions of Sale save that the period of twelve months referred to in Condition 9.1.1 shall be replaced by the unexpired portion of that period only.
9.1.3 Alternatively to Condition 9.1.1, the Seller shall be entitled at its absolute discretion to refund the price of the defective goods in the event that such price shall already have been paid by the Purchaser to the Seller, or, if such price has not been so paid, to relieve the Purchaser of all obligation to pay the same by the issue of a credit note in favour of the Purchaser in the amount of such price.
9.2 The Seller will pass on to the Purchaser (in so far as possible) copies of any relevant product information sheets, technical data sheets or product leaflets issued by the manufacturer of the goods and the Purchaser shall be solely responsible to the entire exclusion of the Seller for complying with all of these and with all and any instructions for installation and/or operation of the goods.
9.3 The Seller’s liability under this Condition shall (subject to Condition 14) be to the exclusion of all other liability to the Purchaser whether contractual, tortious or otherwise for defects in the goods or for any loss or damage to or caused by the goods, and (subject to Condition 14) all other conditions, warranties, stipulations or other statements whatsoever concerning the goods, whether express or implied, by statute, at common law or otherwise howsoever, are hereby excluded; in particular (but without limitation of the foregoing) the Seller grants no warranties regarding the fitness for purpose, performance, use, nature or quality of the goods, whether express or implied, by statute, at common law or otherwise howsoever.
10 Intellectual property rights
10.1 In the event that any claim is made against the Purchaser for infringement of Intellectual Property Rights arising directly from the use or sale by the Purchaser of the goods, the Seller at its own expense shall conduct any ensuing litigation and all negotiations for a settlement of the claim. The Seller will bear the costs of any payment (either by way of a lump sum or a continuing royalty payment) made in settlement, or as a result of an award in a judgment against the Seller in the event of litigation.
10.2 The benefit of Condition 10.1 is granted to the Purchaser by the Seller only in the event that the Purchaser shall give the Seller the earliest possible notice in writing of any such claim being made or action threatened or brought against it, shall make no admission of liability or take any other action in connection therewith, shall permit the Seller to have the conduct of the claim pursuant to Condition 10.1, and shall (at the Seller’s expense) give all reasonable information, co-operation and assistance to the Seller (including without limitation lending its name to proceedings) in relation to the conduct of the claim. In addition, if it is made a condition of any settlement made by the Seller, or judgment awarded against the Purchaser, pursuant to Condition 10.1, the Purchaser shall return or destroy, as applicable, all infringing goods still under its control subject to a refund by the Seller of any payment for such goods already made less a reasonable allowance for depreciation of the goods by reason of their use (if any) by the Purchaser prior to their return or destruction as aforesaid.
10.3 The provisions of Condition 10.1 shall not apply to any infringement caused by the Seller having followed a design or instruction furnished or given by the Purchaser nor to any use of the goods in a manner or for a purpose which shall have been specifically prohibited in writing by the Seller, nor to any infringement which is due to the use of such goods in association or combination with any other product or arising out of any message, information or moving image displayed on the goods by the user of them.
10.4 Any design or instruction furnished or given by the Purchaser shall not be such as will cause the Seller to infringe any intellectual property rights.
10.5 For the purposes of this Condition, the capitalised term “Intellectual Property Rights” means Patents, Registered Designs, Unregistered Designs, Registered Trademarks and Copyright only, having effect in the United Kingdom.
10.6 The foregoing states the Seller’s entire liability to the Purchaser and the Purchaser’s sole and exclusive remedies against the Supplier in connection with claims based on or resulting from the infringement of intellectual property rights, of any kind whatsoever, of third parties.
10.7 All products supplied by Touch Blue contain manufacturer/supplier identification for intellectual property law and warranty purposes and which shall not be interfered with howsoever by the buyer.
11 Confidentiality
Both the Seller and the Purchaser shall each keep confidential and shall not without the prior consent in writing of the other disclose to any third party any technical or commercial information which it has acquired from the other as a result of discussions, negotiations and other communications between them relating to the goods and the Order.
12 Economic loss
Subject to Condition 14, and notwithstanding anything contained in these Conditions (other than Condition 14) or the Order, in no circumstances shall the Seller be liable, in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof (i) for any loss of profit, business, contracts, revenues, or anticipated savings, or (ii) for any special indirect or consequential damage of any nature whatsoever.
13 Limitation of liability
Subject to Condition 14, and notwithstanding anything contained in these Conditions (other than Condition 14) or the Order, the Seller’s liability to the Purchaser in respect of the Order, in contract, tort (including negligence or breach of statutory duty) or howsoever otherwise arising, shall be limited to the price of the goods specified in the Order.
14 Unfair Contract Terms Act 1977
14.1 If and to the extent that s.6 and/or s.7(3A) of the Unfair Contract Terms Act 1977 applies to the Order, no provision of these terms and conditions shall operate or be construed to operate so as to exclude or restrict the liability of the Seller for breach of the express warranties contained in Condition 5, or for breach of the applicable warranties as to title and quiet possession implied into the terms and conditions of the Order by s.12(3) of the Sale of Goods Act 1979, or s.2(3) of the Supply of Goods and Services Act 1982, whichever Act applies to the Order.
14.2 Where the Purchaser is a natural person and if and to the extent that s.2(1) of the Unfair Contract Terms Act 1977 applies to the Order, nothing in these terms and conditions shall operate or be construed to operate so as to exclude or restrict the liability of the Seller for death or personal injury caused to the Purchaser by reason of the negligence of the Seller or of its servants, employees or agents.
14.3 No provision of these terms and conditions shall have effect or operate so as to exclude any liability of one of the parties in respect of fraud or a fraudulent misrepresentation made by that party to the other, or to restrict or exclude any remedy which the other party may have in respect of such fraud or fraudulent misrepresentation.
15 Applicable law
The contract is made in England and shall be governed in all respects by the law of England and the parties agree to submit to the exclusive jurisdiction of the English courts.