Conditions of Sale Hype Branding Ltd
These Conditions of Sale apply where the Customer is purchasing Goods in the course of its business, and not in a private capacity as a consumer.
DEFINITIONS
In these Conditions the following terms shall have the following meanings.
Company’ means Hype Branding Limited (Company No:07755439) whose registered office is at 40-42 High Street, Maldon, Essex, United Kingdom CM9 5PN .
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 16;
‘Customer‘ means the person, company or firm who purchases the Goods from the Company.
Contract means the contract for the sale of Goods by the Company to the Customer in accordance with these Conditions.
Delivery Location: means the location set out in the Order or such other location as the parties may agree in writing;
Design Specification: means any specification for the artwork (or any other feature of the Goods) including drawings, that is agreed in writing by the Customer and the Company;
Goods means the goods (or any part of them) set out in the Order.
Price means the price as detailed on the original quotation or, if different, as otherwise confirmed in writing by the Company (which may be as part of any Order Acknowledgement)
Order means the Customer’s order for the Goods, which maybe verbal or written (whether sent by fax, post or e-mail from the Customer) and shall include any sales or purchase order signed by the Customer.
Order Acknowledgement: means written acceptance by the Company of the Customer’s Order, by email, fax or post or by signature on behalf of the Company on the Customer’s signed sales or purchase order.
In these Conditions, the following rules apply (1) a person includes a natural person, corporate or unincorporated body (2) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms and (3) a reference to writing or written includes faxes and emails.
QUOTATIONS- Any quotations by the Company shall not constitute an offer. A quotation shall, unless otherwise stated, only be valid for 30 days from the date of the quotation.
BASIS OF CONTRACT
3.1 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Design Specification are complete and accurate. The Order shall only be deemed to be accepted if and when the Company issues the Order Acknowledgement, at which point the Contract comes into existence. 3.2 These Conditions shall be incorporated in the Contract to the exclusion of any terms or conditions stipulated or referred to by the Customeror which are implied by trade, custom, practice or course of dealing.3.3 No variation or amendment of a Contract or oral promise or commitment related to it shall be valid unless committed to writing and signed by or on behalf of all parties. 3.4 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 Company which is not set out in theContract 3.5 Any samples, drawings, descriptive matter or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues , brochures or website are produced for the sole purpose of giving an approximate idea of the Goods described in themThey shall not form part of the Contract or have any contractual force.
PRICES
4.1 The Price for the Goods shall be the price set out in the original quotation, or if different, as otherwise confirmed in writing by the Company (which may be as part of the Order Acknowledgement) . The price of the Goods excludes packing, origination, insurance and carriage, VAT, and other taxes or duties, which shall be invoiced to the Customer. The quotation will include sums for origination and carriage. The Price invoiced is calculated in respect of the quantity of Goods actually delivered irrespective of the quantity in respect of which any Order Acknowledgement was issued. All orders are subject to a quantity tolerance of + or – 10% 4.2 The Company shall have the right to adjust its prices for any increase incosts of any kind arising for any reason after the date of the Contract. IN these circumstances, if the Customer does not agree to any such increase in price, it may cancel the Order. 4.3 Price changes shall take effect on the date of service on the Customer of notice of the change.
PAYMENT
5.1 All invoices are payable in pounds sterling within 30 days of the date of theinvoiceand in no circumstances shall the Customer be entitled to make any deduction or withhold payment for any reason at all. Time of payment is of the essence. 5.2 Without prejudice to any other rights of the Company if the Customer fails to pay any invoice by the due date for payment, the Customer shall pay interest on the overdue amount from the date of which payment was due to the date of actual payment (whether before or after judgement) on a daily basis at a rate of 4% per annum. over the base rate from time to time quoted by National Westminster Bank plc and reimburse to the Company all costs and expenses (including legal costs) incurred in the collection of any overdue amount.
GOODS
6.1 The Goods are described in the Company’s catalogue and website as modified by any Design Specification 6.2 The Company may amend the specification of the Goods if required by any applicable statutory or regulatory requirements. 6.3 The Customer shall ensure that the Goods ordered are suitable for the Customer’s intended use. 6.4 If a sample of the Goods ordered is provided to the Customer by the Company and accepted by the Customer the Company shall not be liable for any variations to the Design Specification thereafter if the manufacture and process of the Goods has commenced. 6.5 The risk in any materials supplied by the Customer to the Company shall remain with the Customer for the duration of the Contract unless agreed in writing by the Company. 6.4 The Company reserves the right to charge for any additional work required to meet the Design Specification if in the opinion of any officers’ agents or employees of the Company the Design Specification would not achieve the required effect.
TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on delivery 7.2 Title in the Goods shall remain with the Company and shall not pass to the Customer until the amount due under the invoice for them (including interest and costs) has been paid in full. 7.2 Until title passes the Customer shall hold the Goods as bailee for the Company and shall store or mark them so that they can at all times be identified as the property of the Company. 7.3 The Company may at any time before title passes and without any liability to the Customer: — repossess and use or sell all or any of the Goods and by doing so terminate the Customer’s right to use, sell or otherwise deal in them; and — for that purpose (or determining what if any Goods are held by the Customer and inspecting them) enter any premises of or occupied by the Customer. 7.4 Until title passes the entire proceeds of sale of the Goods shall be held in trust for the Company and shall be held in a separate designated account and not mingled with other moneys or paid into any overdrawn bank account and shall be at all times identifiable as the Company’s money.
7.5 The Company may maintain an action for the price of any Goods notwithstanding that title in them has not passed to the Customer.
DELIVERY AND PERFORMANCE
8.1 The Company shall deliver the Goods to the Delivery Location at any time after the Company notifies the Customer that the Goods are ready to be despatched. Delivery of the Goods shall be completed on the the Goods’ arrival at the Delivery Location. 8.2 The Company may at its discretion deliver the Goods by instalments in any sequence. 8.3 Where the Goods are delivered by instalments, no default or failure by the Company in respect of any one or more instalments shall invalidate the Contract in respect of the Goods previously delivered and shall not entitle the Customer to cancel any future instalment. 8.5 Any dates quoted by the Company for the delivery of the Goods are approximate only and time of delivery is not of the essence. Estimated delivery dates shall not form part of the Contract and the Customer acknowledges that in the performance expected of the Company no regard has been paid to any quoted delivery dates.
8.6 If the Customer fails to take delivery of the Goods or has failed to provide any instructions or documents required to enable the Goods to be delivered, the Company may on giving written notice to the Customer store or arrange for the storage of the Goods, and on the service of the written notice, risk in the Goods shall pass to the Customer, delivery of the Goods shall be deemed to have taken place; and the Customer shall pay to the Company all costs and expenses including storage, any redelivery and insurance charges arising from its failure to take delivery.
CLAIMS NOTIFICATION
9.1 Any claim for non-delivery of the Goods shall be notified in writing by the Customer or the Customer’s agent to the Company within 72 hours of receipt by the Customer or Customer’s agent of notification of despatch of the Goods. 9.2 Any claim that any Goods have been delivered damaged, are not of the correct quantity or do not comply with their description shall be notified by the Customer to the Company within 72 hours of their delivery provided that the Buyer endorses the carriers delivery note with details thereof. 9.3 Any alleged defect in the Goods which is not covered by clause 9.2 shall be notified by the Customer to the Company within 30 days of the delivery of the Goods.
9.4 Any claim under this condition must be in writing and must contain full details of the claim including the part numbers of any allegedly defective Goods.
9.5 The Company shall be afforded reasonable opportunity and facilities to investigate any claims made under this condition and the Customer shall, if so requested in writing by the Company, promptly return any Goods the subject of any claim and any packing materials securely packed and carriage paid to the Company for examination. 9.6 The Company shall have no liability with regard to any claim in respect of which the Customer has not complied with the claims procedures in these conditions.
SCOPE OF CONTRACT
Under no circumstances shall the Company have any liability of whatever kind for: 10.1 Any defects resulting from wear and tear, accident, improper use by the Customer or use by the Customer except in accordance with the instructions or advice of the Company or the manufacturer of any Goods or neglect or from any instructions or materials provided by the Customer; 10.2 Any Goods which have been adjusted, modified or repaired. 10.3 The suitability of any Goods for any particular purpose or use under specific conditions whether or not the purpose or conditions were known or communicated to the Company; 10.4 Any substitution by the Company of any materials or components not forming part of any Design Specification of the Goods agreed in writing by the Company; 10.5 Any descriptions, illustrations, specifications, figures as to performance, drawings and particulars of weights and dimensions submitted by the Company contained in the Company’s catalogues, price lists or elsewhereare merely intended to represent a general idea of the Goods and not to form part of the Contract or be treated as representations or a portfolio of the Company’s work; 10.6 Any technical information, recommendations, statements or advice furnished by the Company, its servants or agents not given in writing in response to a specific written request from the Customer before the Contract is made; or 10.7 Any variations in the quantities or dimensions of any Goods or changes of their specifications or substitution of any materials or components, if the variation or substitution does not materially affect the characteristics of the Goods, and the substituted materials or components are of a quality equal or superior to those originally specified.
EXTENT OF LIABILITY
11.1 Nothing in these Conditions shall limit or exclude the Company’s liability for (a) death or personal injury caused by its negligence (b) fraud or fraudulent misrepresentation (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (d) defective products under the Consumer Protection Act 1987 or (e ) any matter for which liability cannot be excluded or limited as a matter of law. 11.2 Subject to clause 11.1, the Company 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, loss of revenue, loss of data, loss of anticipated savings, loss of contract or any indirect or consequential loss arising under or in connection with the Contract. 11.3 Subject to clause 11.1, the Company’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 price of the Goods11.4 If the Customer establishes that any Goods have not been delivered, have been delivered damaged or do not comply with their description the Company shall, at its option, replace with similar goods any Goods which are missing, lost or damaged or do not comply with their description, allow the Customer credit for their invoice value or repair any damaged Goods. These are exclusive remedies for the Customer. 11.3 If the Customer can demonstrate to the Company that any Goods are defective the Company shall, as its option, replace with similar goods or repair any defective Goods, allow the Customer credit for their invoice value or to the extent that the Goods are not of the Company’s manufacture, assign to the Customer (so far as the Company is able to do so) any warranties given by the manufacturer of the Goods to the Company, in each case as an exclusive remedy. 11.4 The delivery of any repaired or replacement Goods shall be at the Company’s premises or other delivery point specified for the original Goods. 11.5 Where the Company is liable in accordance with this clause in respect of only some or part of the Goods the Contract shall remain in full force and effect in respect of the other or other parts of the Goods and no set-off or other claim shall be made by the Customer against or in respect of such other or other parts of the Goods. 11.6 No claim against the Company shall be entertained for any defect arising from any Design Specification provided or made by the Customer or if any adjustments, alterations or other work has been done to the Goods by any person except the Company. 11.7 The Company shall not be liable where any Goods, the price of which does not include carriage, are lost or damaged in transit and all claims by the Customer shall be made against the carrier. Replacements for such lost or damaged Goods will, if available, be supplied by the Company at the prices ruling at the date of despatch. 11.8 Whilst the Company shall make every effort to match print colours to the Customer’s requirements, no liability is accepted by the Company for colour variations within normally expected commercial tolerances. 11.9 The Company shall not be liable for the acts or omissions of any third parties to the Contract. Except as provided in this section, the Company shall have no further liability in respect of missing, damaged or defective Goods. 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.
GENERAL
12.1 The Company may sub-contract the performance of the Contract in whole or in part. 12.2 The Customer shall not assign or sub-let this contract in whole or in part. 12.3 The Company shall have a lien on all the Customer’s property and materials in the Company’s possession for all amounts due at any time from the Customer and may use, sell or dispose of that property as agent for and at the expense of the Customer and apply the proceeds in and towards the payment of such amounts on 28 days’ notice in writing in the Customer. On accounting to the Customer for any balance remaining after payment of any amounts due to the Company and the costs of sale or disposal the Company shall be discharged of any liability in respect of the Customer’s property and materials. 12.4 The Company may at its discretion suspend or terminate the supply of any Goods if the Customer fails to make any payment when and as due or otherwise defaults in any of its obligations under the Contract or becomes insolvent, has an administrative receiver appointed of its business or is compulsorily or voluntarily wound up or the Company bona fide believes that any of those events may occur, and in case of termination may forfeit any deposit paid. 12.5 If the Goods are manufactured in accordance with any Design Specification provided or made by the Customer the Customer shall compensate the Company in full on demand for all claims, expenses and liabilities of any nature in connection with them, including any claim, whether actual or alleged, that the Design Specification (or the Goods manufactured in accordance with the Design Specification) infringes the rights of any third party.
12.6 Except as expressly agreed in any Order, all tools, patterns, materials, drawings, specifications and other data provided by the Company shall remain its property and all technical information, patentable or un-patentable, copyright and registered designs arising from the execution of any Orders shall become the property of the Company.
CONFIDENTIALITY
13 The Customer shall not at any time whether before or after the termination of the Contract divulge or use any unpublished technical information deriving from the Company or any other confidential information in relation to the Company’s affairs or business or method of carrying on business.
CANCELLATION
14.1 Orders for Goods which have to be made especially for the Customer will be charged in full unless written notice of cancellation is received not later than 2 weeks before the expected delivery date quoted in the Order Acknowledgement and manufacture of them or any components for them has not commenced at the date of that notice. Orders for stock items may be cancelled by written notice at any time before the Goods are allocated to the Contract but if a cancellation notice is received after the Goods have been allocated to the Contract then the Customer shall be charged in full. 14.2 Orders for seasonal Goods are subject to a cancellation charge of 25% of the unit cost and the full cost of tools following the issue of an Order Acknowledgement and the Goods being allocated to the contract provided that notice of cancellation is received prior to 1st November. Cancellation of orders for seasonal Goods received after 1st November will be charged in full. 14.3 Any orders in respect of which an Order Acknowledgement is issued which is cancelled in accordance with clauses 14.1 or 14.2 are subject to a minimum administration charge of £50. 14.4 The Company reserves the right to cancel any orders in respect of which the Design Specification provided by the Buyer would not in the opinion of any officers, agents or employees of the Company result in the required effect at the cost set out in the Order Acknowledgement at any time prior to the commencement of manufacture and process of the Goods.
FORCE MAJEURE
15 The Company shall not be liable for any failure in the performance of any of its obligations under this Contract caused by factors outside its control.
VARIATION
16 These Conditions may be amended by the Company at any time. Any such variation shall not affect any existing Contract.
LAW AND JURISDICTION
17 This Contract shall be governed by English law and the Customer consents to the exclusive jurisdiction of the English courts in all matters regarding it.
NOTICES
18.1 Any notice given under these Conditions shall be in writing and may be served: — personally; — by registered or recorded delivery mail; — by e-mail or facsimile transmission (the latter confirmed by post); or — by any other means which any party specifies by notice to the others. 17.2 Each party’s address for the service of notice shall be the address specified on the Order Acknowledgement or such other address as is specified by notice to the others. 17.3 A notice shall be deemed to have been served: — if it was served in person, at the time of service; — if it was served by post, 48 hours after it was posted; and — if it was served by e-mail or facsimile transmission, at the time of transmission.